Fourteenth Amendment

Civil Rights Articles

The New Equal Protection

Vol. 124 No. 3 Over the past decades, the Court has systematically denied constitutional protection to new groups, curtailed it for already covered groups, and limited Congress’s capacity to protect groups through civil rights legislation. The Court has repeatedly justified these limitations by adverting to pluralism anxiety. These cases signal the end of equality doctrine as we have known it. The end of traditional equality jurisprudence, however, should not be conflated with the end of protection for subordinated groups. The Court’s commitment to civil rights has not been pressed out, but rather over to collateral doctrines. Most notably, the Court has moved away from groupbased equality claims under the guarantees of the Fifth and Fourteenth Amendments to individual liberty claims under the due process guarantees of the Fifth and Fourteenth Amendments. This move reflects what academic commentary has long apprehended – that constitutional equality and liberty claims are often intertwined. I refer to such hybrid equality/liberty claims as “dignity” claims. Based on whether the liberty or the equality dimension of the hybrid claim is ascendant, I call it the “libertybased” or “equality-based” dignity claim.
Election Law Case Comment

Relinquished Responsibilities

Vol. 123 No. 1 So if . . . it violates due process for a judge to sit in a case in which ruling one way rather than another increases his prospects for reelection, then – quite simply – the practice of electing judges is itself a violation of due process. – Republican Party of Minnesota v. White, 2002 These words were included in the Court’s opinion in Republican Party of Minnesota v. White not to endorse but to mock the idea that judicial elections violate due process. The constitutionality of judicial elections was not the issue before the Court in White; nor was this issue directly before the Court in Caperton v. A.T. Massey Coal Co., the topic of this Comment. Yet in both cases, and in others the Court has declined to hear, the lurking question that is being ignored is whether present-day judicial elections, with their untoward emphasis on campaign finances, can be reconciled with the due process guarantee of fundamental fairness.