Invented out of whole cloth by the Supreme Court, the rational basis test applies in all constitutional cases that do not involve rights the Supreme Court has deemed “fundamental” such as free speech, religion, and voting. Contrary to its name, the rational basis test is not rational, it is not concerned with the actual basis for the government’s actions, and it is not a “test” of anything except judicial willingness to turn a blind eye to the misconduct of other branches.

What makes the RBT so toothless? The Supreme Court has stated that under rational basis review, the government’s true ends in passing a given law are “entirely irrelevant” and those laws may be based on “rational speculation unsupported by evidence or empirical data.” Those seeking to challenge a law under rational basis review must “negative every conceivable basis” for the government’s actions, even ones that are purely speculative or hypothetical. If the court can imagine a “legitimate” interest that might be served by the challenged law, that’s enough to uphold it.

It sounds absurd, because it is. Let’s break it down.

The government’s true ends are irrelevant.  Judges will not seek to determine the government’s actual ends in passing or enforcing a given law, but will uphold legislation if a legitimate end can be hypothesized.

Those challenging the law must negate every conceivable justification for it. Unlike cases involving “heightened” standards of review (where “heightened” is simply a euphemism for “real”), in rational basis cases, judges do not require the government to support its factual assertions with evidence. Instead, courts will uphold a law if there is a conceivable set of facts that could justify the government’s actions, even if those facts don’t appear anywhere in the record.

Judges help the government rationalize its actions. Judges are required to assist the government by inventing justifications for its conduct, a glaring breach of judicial impartiality that is not tolerated in any other setting.

Under the RBT, the government receives the benefit of an effectively irrebuttable presumption of constitutionality. The result? An empty charade in place of meaningful judicial review. Rights that the Framers held sacred are trampled upon in plain sight.

What makes the RBT different from every other standard of review is its abandonment of the judciary’s customary truth-seeking function. There is no other setting in which judges abandon their responsibility to seek truth and it is inappropriate for them to do so in rational basis cases as well, notwithstanding the Supreme Court’s inexplicable and irresponsible command to the contrary. Simply put, the RBT is the distilled essence of judicial abdication and is incapable of protecting our constitutional rights.