Professor James McGoldrick, "The Rational Basis Test and Why it is so Irrational" -- San Diego Law Review (forthcoming)

October 10, 2018 | Professor James M. McGoldrick's article, "The Rational Basis Test and Why it is so Irrational: An 80-Year Retrospective" (SSRN) will be published in the San Diego Law Review. The article considers the result of the rise of the rational basis test as a Supreme Court standard of review.

Abstract of  "The Rational Basis Test and Why it is so Irrational"

This article attempts to explain why the rational basis test is so irrational in its outcome, why basic interests are disregarded in the name of judicial respect for the legislative process, and how easy it would be for there to be a better outcome. The article traces the rise of the rational basis test from U.S. v. Carolene Products in 1938 after the Court's rejection of Lochnerism, a reference to the high level of due process protection once given by the Court to certain substantive economic interests. As almost an accidental outcome of the rejection of Lochnerism and the Court's acceptance of the high-end purpose of allowing the legislature to address social ills, the Court adopted a permissive review of all laws not involving fundamental rights or suspect classifications. Instead, the Court focused on laws going to crucial to day in and day out living, laws impacting health, housing, education, and the pursuit of a lawful occupation. The rational basis test almost without comment replaced the reasonable basis test that had coexisted with Lochnerism but had nothing to do with its excesses. The reasonable basis test was not a high level of review, but it nonetheless placed meaningful limits on the legislative process, protecting even the mundane things of life. This article calls for a return to the reasonable basis test and the respect it would bring to things that matter in our ordinary lives, a respect that the rational basis test has consistently disregarded.