William D. Araiza

 

On his book Animus: A Short Introduction to Bias in the Law

Cover Interview of June 14, 2017

The wide angle

My interest in animus grows out of scholars’ and courts’ impatience with conventional equal protection doctrine. Starting in the late 1960s and continuing until the mid-1980s, the Court experimented with an approach to equal protection known as political process theory. In brief, this theory argued that courts should give close scrutiny to equal protection claims only when the classification in question (e.g., a sex classification) impacted a group that was not able to fully defend its interests in the political process. The wisdom underlying political process theory is that courts were generally unqualified to judge the reasonableness of legislatures’ decisions that the public good was promoted by treating one group (e.g., trucking companies) differently from another (e.g., railroad companies). Political process theory argued that courts should focus their equal protection scrutiny on cases where the affected group was unable to effectively make its case in the legislative process. In such situations, theorists suggested, there was no reason to presume that the legislature was acting reasonably when they disadvantaged that group.

Political process theory underlay much of the Court’s thinking about equal protection in the 1970s and early 1980s. But eventually it petered out, as it encountered a series of difficult conceptual and practical roadblocks. It was just around that moment that the Court began using the animus concept. Indeed, a key case for animus doctrine, City of Cleburne v. Cleburne Living Center, was decided in 1985. Since Cleburne, the Court’s interest in animus has only increased. Indeed, animus lay directly or indirectly behind the series of equal protection victories gay rights advocates have won at the Supreme Court over the last two decades.

Thus, the animus concept has risen to a level of real importance at the Court. Nevertheless, the Court has never provided a satisfactory explanation of what animus means or how it is uncovered. Today, these questions are more important than ever. With the rise of cultural conflict and xenophobia, the prospect of government action undertaken for fundamentally bad reasons—essentially, to treat people unequally simply in order to oppress them—has grown. If the Court—and our constitutional law more generally—is going to be able to respond to the worst instances of such conduct, it will need conceptual tools. One of those tools has to be a more carefully thought-out animus doctrine.