The Burger Court and the Conflict over the Rational Basis Test: The Untold Story of Massachusetts Bd. of Retirement v. Murgia

Abstract

The Burger Court and the Conflict over the Rational Basis Test: The Untold Story of Massachusetts Bd. of Retirement v. Murgia EARL M. MALTZ Few commentators would rank Massa­ chusetts Bd. ofRetirement v. Murgia' high in terms ofdoctrinal significance. In rejecting an equal protection challenge to a Massachusetts statute that required police officers to retire at age fifty, the Court made no effort to refine the parameters of rational basis analysis. Instead, a briefper curiam opinion simply noted that the rational basis test was “a relatively relaxed standard reflecting the Court’s awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoid­ able one” and that “perfection in making the necessary classifications is neither possible nor necessary.”2 In fact, however, the internal delibera­ tions of the Court in Murgia played a central role in the evolution of modem rational basis jurisprudence. During those deliberations, Justices William J. Brennan, Jr., and Lewis F. Powell, Jr., made a concerted effort to unite a majority of the Justices behind an opinion that would have committed the Court to a version of the rational basis test that was significantly less deferential than the ap­ proach that had been followed by the Warren Court. When this effort failed, it became clear that the Justices were irrevocably divided, and that no single, definitive formulation could command majority support. Thus, the mem­ bers of the Court simply agreed to disagree, and the core issue remained unresolved for the remainder of Burger’s tenure. THE RATIONAL BASIS TEST IN THE EARLY 1970s The early 1970s was a period of great ferment in the development of equal protec­ tion doctrine. At the time that Warren Burger succeeded Earl Warren as Chief Justice in MASSACHUSETTS Bd. OF RETIREMENT v. MURGIA AND RATIONAL BASIS 265 1969, the traditional structure of two-tiered analysis appeared to be firmly entrenched in the Court’s constitutional jurisprudence. Un­ der this approach, legally established distinc­ tions were divided into two categories. Ifsuch a distinction was based on one of a small group of suspect classifications or implicated one ofa limited numberoffundamental rights, then the distinction was subjected to “strict scrutiny” and would only survive a constitu­ tional attack if the government could demon­ strate that the distinction was necessary to serve a compelling governmental interest. In practice, this standard was so stringent that this high level of scrutiny was famously described by one commentator as “strict in theory but fatal in fact.”3 By contrast, the constitutionality of all other classifications was measured only by a rational basis test that was as deferential as strict scrutiny was harsh. Thus, for example, in his opinion for the Court in McGowan v. Maryland,4 Chief Justice Warren relied on the 1920 decision in Lindsley v. Natural Carbonic Gas Co. and a variety ofother cases in declaring that, under the rational basis test, “a statutory discrimina­ tion will not be set aside if any state of facts reasonably may be conceived to justify it.”6 Although a number of late Warren Court decisions might have been taken to suggest that a majority ofthe Justices were prepared to designate additional classifications as “sus­ pect” and also to expand the set ofrights that would be deemed fundamental, the Court remained firmly committed to deference in all other equal protection cases. The equal protection decisions of the early Burger era were far less consistent in this regard. In some high-profile cases, the Court appeared to take the same approach to rational basis analysis that had animated McGowan and its progeny. Thus, for example, in Dandridge v. Williams (1970), the majority opinion explicitly adopted the McGowan standard in upholding the constitutionality of a Maryland statute that limited the amount ofbenefits that could be paid to families under the Aid to Families with Dependent Children Program.7 But in a variety of other cases, including challenges to statutes that discrimi­ nated against women and illegitimate children and laws that restricted access to contra­ ceptives and eligibility for welfare benefits, a majority of the Justices concluded that statutory classifications did not satisfy the strictures of rational basis analysis. The 1971 decision in Reed v. Reed...