Garrett and Bush v. Gore

Thu Feb 22 12:31:24 PST 2001

Why shouldn't we say suspect classifications are protected when those already recognized are still protected?  The failure to find more of them is due to the limited number of such classifications that fit the established doctrinal models (which is where your gripe apparently lies); isn't enforcement of any existing doctrine always "an artifact of past precendent" ?

>>> crossf at MAIL.UTEXAS.EDU 02/23/01 01:41AM >>>
Is there still a suspect classification strand of equal protection law?
Of course, the court applies that strand in race, gender, cases, etc.
But that seems like an artifact of past precedent -- can we say that suspect
classifications are protected when the Court pretty much declares that
the game is over and no new classifications will be recognized?

At 09:19 AM 2/22/2001 -0700, you wrote:
>   This is simply the difference between the fundamental rights and suspect
>classifications strands of equal protection law.    Michael McConnell
>University of Utah College of Law
>332 South 1400 East Rm. 101
>Salt Lake City, UT 84112     -----Original Message-----
>From: Howard Gillman   [mailto:gillman at RCF-FS.USC.EDU]
>Sent: Thursday, February 22, 2001   8:50 AM
>Subject: Garrett   and Bush v. Gore
>I'm surprised there hasn't been more   commentary on the relationship
>between Garrett and Bush v. Gore. I understand   the cases can be
>technically distinguished on the grounds that section 5   raises separate
>issues, but aren't there still instructive comparisons in the
>conservatives' understanding of what counts as an equal protection
>violation   and how much deference is owed state officials?
>  The full article can be found at:
>But here's an excerpt:
>        In a concurring opinion, Kennedy said that state discrimination
>against     the disabled is regrettable but not necessarily
>     "The failure of a state to revise policies now seen as incorrect," he
>   wrote, does not "constitute the purposeful and intentional action
>required     to make out a violation of the equal protection clause."
>     This stands in sharp contrast to what the Rehnquist majority said in
>  December in the case of Bush vs. Gore.
>     There, the five justices who stopped the hand recount sought by Vice
>  President Al Gore said that Florida had violated the equal protection
>clause     because it failed to set specific standards for counting legal
>ballots.     While no one claimed that state officials had deliberately set
>out to     discriminate for some voters and against others, unfairness
>could result,     the majority said.
>     In Wednesday's ruling, however, the majority acknowledged that some
> blind or deaf workers might consider it unfair that they were not hired
> because of their disability. Nonetheless, Rehnquist said that he saw "no
>  pattern of unconstitutional discrimination" targeted at disabled people.

>Howard Gillman
>USC Political Science
Frank Cross
Herbert D. Kelleher Centennial Professor of Business Law
CBA 5.202
University of Texas at Austin
Austin, TX 78712

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