Between the Tiers : the New [ Est ] Equal Protection

This Essay (in Sections I and II) briefly traces the evolution of modem equal protection doctrine in order to point (in Section III) to a disparate but substantial group of equal protection decisions that do not fit, and that the Court did not pretend to fit, into one of the officially identified three tiers of Equal Protection Clause analysis. The Essay (in Section IV) defends the viewpoints, attributed to Justices Marshall and Stevens, that (1) proper equal protection scrutiny demands differing levels of justification for state policies, depending on the nature of the group lines drawn by the state classification and the nature of the benefit that the classification has burdened; and (2) Supreme Court opinions applying the Equal Protection Clause would be improved if Justices honored an obligation in each instance to indicate in some detail how they assess each of these for the case at hand, rather than resting upon the talismanic invocation of labels like "suspect classification," "fundamental right," and so forth. As part of the argument that such a doctrinal reform would have salutary consequences, the Essay (in Section V) then points out ways in which such doctrinal obligations, were they to be imposed, might have altered the per curiam opinion in Bush v. Gore.