The Rational Basis Test: The Story Continues
All constitutional rights are not created equal—at least not in the eyes of the Supreme Court. How closely the Supreme Court will look at a challenged law depends on the rights the government is accused of violating. If a law restricts political speech or treats speech differently based on its content a court will use “strict scrutiny.” Under strict scrutiny, the government bears the burden of proving that the challenged law is narrowly tailored to serve a compelling government interest. But when the right at issue is an economic right, like the right to earn an honest living, a court will apply something known as the “rational basis test.”
Under this “test” a court will uphold a law so long as it is rationally related to a legitimate government purpose. What is more, the plaintiff bears the burden of proving that the law is not related to any legitimate government purpose. Further, the government does not even have to present its real purpose. There just has to be an imaginable legitimate government purpose and a possible connection between the law and that purpose.
The Constitution does not require either of these tests. Neither existed at the time of the founding. And neither just appeared one day in the lexicon of federal courts. Both developed over time, and the development of the rational basis test is particular interesting.
The ideas behind the test, as explained in the first post, developed in the opinions of the first Justice Harlan and Justice Holmes. These ideas came into their own during the New Deal Era. It was during the 1930s that the rational basis test came to center stage and began to dominate constitutional litigation of economic rights. This was a marked departure, a rebuttal, of the Lochner Era during which the Court struck down several regulations impacting and limiting economic rights.
The 1930s and the Establishment of the Rational Basis Test
The rational basis test started to gain a hold during the New Deal Era as the federal government and state governments looked to remedy the harms wrought by the Great Depression. A series of cases in the 1930s mark the ascendency of the rational basis test.
First is Nebbia v. New York—a 1934 case challenging the minimum price on the sale of milk set by the New York Milk Control Board. The case arose out a criminal conviction of Leo Nebbia who sold two quarts of milk for less than the nine-cent per-quart minimum. He appealed his conviction arguing that the price control violated the Due Process Clause of the 14th Amendment.
The Supreme Court flatly rejected his arguments and upheld the law. The Court explained that “[s]o far as the requirement of due process is concerned, and in the absence of other constitutional restriction, a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose.” Putting a finer point on it, the Court explained that courts lack authority to override economic policy exacted by legislatures. In other words, the Supreme Court issued a blank check to states to enact regulations concerning economic policy. This is especially troubling in situations such as this where there is substantial evidence that the minimum price on milk was driven by pure protectionism and a desire to help a particular voting bloc.
Next is West Coast Hotel v. Parrish, a 1937 case that completed the shift in federal jurisprudence and marked the end of the Lochner Era. In that case, the Court upheld the state of Washington’s minimum weekly wage for women. The case arose when a hotel underpaid one of their employees and she sued to recover the missing money. The lower courts held that the law was unconstitutional, relying on the Supreme Court’s decision in Adkins v. Children’s Hospital in 1923 which struck down a minimum wage law for women and children enacted by Congress for Washington, D.C.
But in the intervening years things had changed. The country was rocked by the Great Depression and, in response, both the federal and state governments mobilized and used the foundations laid during the Progressive Era to take on a bigger role in regulating the economy. In turn, the Supreme Court, partially in response to President Roosevelt’s threat to pack the Court, decided to use the foundations laid by Harlan, Holmes, and Thayer to adopt a much more deferential approach. This case is not remembered so much for any particular formulation of the rational basis test, but for officially rejecting a more expensive reading of the liberty by the Due Process Clause of the 14th Amendment.
This rejection took on new meaning the next year when the Court decided United States v. Carolene Products. The 1938 case cemented the doctrinal shift and officially relegated certain rights to only receiving rational basis scrutiny. The law at issue was a federal statute prohibiting the interstate shipment of filled milk—skimmed milk supplemented with fat or oil other than milk fat.
The Supreme Court applied the rational basis test in upholding the law. The Court reasoned that “the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless, in the light of the facts made known or generally assumed, it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.” Then, in one of the most important footnotes in all of history (or at least in the history of the Supreme Court) the Court explained when this reasoning should apply.
In footnote four, the Court explained that some cases, some rights, would receive more protection than others. That is, the presumption of constitutionality that applies when considering constitutional challenges to economic regulations would apply with less force to rights explicitly protected by the first ten amendments, rights relating to voting, democratic self-governance, free expression, and when considering legislation that discriminates against religion or discrete and insular minorities. This footnote cemented the rational basis test as the primary method courts would evaluate case impacting economic rights going forward.
When the Rational Basis Test Stopped Being a “Test”
These three cases and the establishment of the rational basis test for economic restrictions led to the staggering deference seen in Williamson v. Lee Optical in 1955. That case involved Oklahoma’s regulatory scheme surrounding visual care. The challenged law barred individuals who were not licensed optometrists or ophthalmologists from replacing broken lenses and prohibited out of state eyeglass retailers from advertising in Oklahoma. In practice, it prohibited an optician— the person responsible for grinding lenses, filling prescriptions, and fitting frames—from fitting “old glasses into new frames or supply a lens, whether it be a new lens or one to duplicate a lost or broken lens, without a prescription.”
Theodore Shanbaum, founder of the eyeglass retailer Lee Optical, challenged the law as violating the Due Process Clause of the 14th Amendment. The Court acknowledged that the “law may exact a needless, wasteful requirement in many cases” but concluded that “the law need not be in every respect logically consistent with its aims to be constitutional.” The Court further explained that “[i]t is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it” (emphasis added).
This case, and this language, took the rational basis test to the extreme. In Nebbia v. New York the Court explained that economic legislation still could not be arbitrary or discriminatory. But here, the Court took it a step further and held that all the legislature needed were hypothetical justifications and possible fixes for the Court to uphold the law against a constitutional challenge.
Further, the Court did not require the government to present evidence that there was actually an evil addressed by barring individuals who were not licensed optometrists or ophthalmologists from replacing broken lenses. It was enough for the Court that eye examinations could reveal health information and that this law might make eye examinations more frequent. Yet the Court did not require Oklahoma to even present any evidence of this.
As explained in the first post in this series, the foundations for the rational basis test were set by the opinions of the first Justice Harlan in the late 1880s, the writings of the eminent constitutional scholar James Bradley Thayer, and the opinions of Justice Holmes. In the 1930s, the Supreme Court built upon those foundations and established the rational basis test. While the test originally required economic laws still not be arbitrary and discriminatory, by the 1950s the Court had abandoned those restraints and willingly upheld restrictions based on the possibility that they might harm an evil that the government has not even proved was even there.
Yet as hard as it is to believe, Williamson v. Lee Optical does not represent the high-water mark for the rational basis test. Things actually got worse. The next post in this series will examine just how things actually got worse in the 1990s with FCC v. Beach Communications.
Adam Shelton is a fellow with IJ’s Center for Judicial Engagement