The Yale Law Journal

October 2018

The New Class Blindness

Constitutional LawReproductive Rights

abstract. There is a widespread perception that class receives no special protection under the Fourteenth Amendment. That perception arose forty years ago, when the Supreme Court shifted to the right, rejected the idea that the Constitution protects positive rights, and declined to recognize class as a suspect classification under the Equal Protection Clause. But those consequential developments have obscured an important, ongoing form of class-related constitutional protection: one that resides not in equal protection but in fundamental rights doctrine. This Article shows that a non-trivial number of fundamental rights came to be recognized as such—particularly during the Warren Court era—because they are essential not only to individual liberty but also to the equal citizenship of people without financial resources. Today, there are still doctrinal mechanisms in fundamental rights law that require courts to consider class when adjudicating the constitutionality of rights-burdening state action.

To illustrate this phenomenon, this Article focuses on reproductive rights, a major area of fundamental rights law whose connection to class is poorly understood. The Court’s opinions in Griswold v. Connecticut and Roe v. Wade were not framed in terms of class, but class-related concerns informed the Court’s decision to recognize birth control and abortion as fundamental rights. In the contexts of voting and criminal procedure too, the Court identified certain rights as fundamental in part because the state was denying them to financially disadvantaged people. In all of these areas, the Court developed fundamental rights doctrines that limited the extent to which the state could block such people from exercising their rights.

Today, these long-standing class-sensitive doctrines are under threat. An increasing number of conservative judges—including a number of Supreme Court Justices—have begun to argue that class-related concerns have no place under the Fourteenth Amendment. In support of this new class-blind approach, these judges cite Burger Court precedents rejecting positive rights claims and declining to treat the poor as a protected class under the Equal Protection Clause. But the Burger Court never held that courts are prohibited from considering class when interpreting the Fourteenth Amendment. Indeed, it preserved many of the class-sensitive mechanisms its predecessor had developed to protect fundamental rights. Thus far, the Court has rejected attempts to eradicate these remaining forms of class-related protection from the law. But the composition of the federal judiciary is now in flux, and it is not clear that resistance to the new class blindness will endure. What is clear is that the emergent notion that class-based considerations have no place anywhere under the Fourteenth Amendment is a product not of the Burger Court era, but of our own.

author. W.H. Francis, Jr. Professor of Law, University of Texas School of Law. For cogent and insightful comments, I am grateful to Bruce Ackerman, Kate Andrias, Joey Fishkin, Willy Forbath, Daryl Levinson, Trevor Morrison, Bill Novak, Robert Post, David Pozen, Judith Resnik, Larry Sager, and Reva Siegel. Many thanks as well to the participants in the Legal Theory Workshop at Columbia Law School, the Legal History Workshop at the University of Michigan Law School, the Colloquium on Constitutional Theory at NYU School of Law, the Equality Roundtable at Cardozo Law School, and the Faculty Workshops at the George Washington School of Law, the University of Texas School of Law, Vanderbilt Law School, and Yale Law School. For outstanding research assistance, thanks are due to Kevin Trahan, Kelsey Chapple, and Anne Swift.