Amendment Scrutiny Research Articles

The effect of austerity on institutional litigation.

When we approach the subject of courts and institutional reform, we should remember that it is not the institutions but the people they serve that are our primary concern. The kinds of people our public institutions affect are primarily the poor, the elderly, the families headed by women with children, and the nonwhite members of this society who make less, own less and, relative to their means, owe more.' These are the clients of the social institutions with which we are concerned. The failure of these services must have disproportionate impact on the elderly, the disabled, and the minorities of our society. Racism and poverty are facts of American life that the courts do not ignore. Institutional reform means doing more for the poor and minorities at the expense of the more well-to-do. Strict Fourteenth Amendment scrutiny will not be invoked where discrimination is economic, even though racial disparities in financial position mean that such economic discrimination leads indirectly to racial distinctions in services rendered by the state. Professor Tribe has accurately synthesized the current view: there is on the part of the Supreme Court, a determined . . . commitment to preserve for the non-poor ways of purchasing distance and distinction from the less fortunate-to preserve, in effect, plenty of room at the top, without wholly abandoning protection at the bottom. 2 In their recent article in the Harvard Law Review, Professors Eisenberg and Yeazell state