One Test, Two Standards:

by Clark Neily

Most of us have a drawer or a closet in our home where we put things that are not important enough to have their own place but are not quite worthless enough to throw away either.  This is what the rational basis test is for the Supreme Court—a junk drawer for disfavored constitutional rights the Court has not explicitly repudiated, but that it prefers not to enforce in any meaningful way.  Like any other junk receptacle, the rational basis test has become a real mess.

One way to begin cleaning up that mess—hopefully on the way to jettisoning rational basis review in favor of a test with some measure of substance and integrity—would be for the Supreme Court to make clear first that purported justifications for challenged regulations must be not only “conceivable” but truly plausible, and second, that in making that evaluation judges should favor reality over conjecture.  Fortunately, there is ample support in the Court’s precedents for the former and in common sense for the latter.


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