Is Political Powerless a Requirement for Heightened Equal Protection Scrutiny?

Abstract

Deferring to other scholars for analysis of the immutability argument, this Article will analyze the political powerlessness argument. Part II will lay out the intellectual and political background of the argument. Part III will demonstrate, through a close analysis of U.S. Supreme Court equal protection precedent, that political powerlessness is neither necessary nor sufficient for a classification to meet the Court's requirement for heightened scrutiny. To the contrary, the U.S. Supreme Court will not announce heightened scrutiny to protect a totally powerless minority group against pervasive discrimination. Part IV argues that, as a normative matter, political powerlessness ought not play a critical role in equal protection doctrine. Indeed, the most sensible understanding of equal protection law would urge courts to exercise the utmost caution in equal protection cases and not apply strict scrutiny until the disadvantaged group has become an accepted part of the pluralist process.