This Note argues that the Supreme Court of the United States should reconsider the tiers of scrutiny framework that courts use to evaluate equal protection claims. The Supreme Court has recognized government classifications on the bases of race and gender to be suspect and to merit heightened judicial scrutiny. However, any governmental classification among people is subject to review under the Equal Protection Clause. The class itself is not suspect; the basis for the classification, like race or gender, is treated by courts as more or less suspect.
However, employing the tiers of scrutiny no longer makes sense in an era when traditional understandings of race and gender continue to break down. Relatedly, it is time to reassess the current jurisprudential approach because the Supreme Court has frequently failed to adhere to the tiers of scrutiny framework it has articulated. Part I of this Note discusses the breakdown of race and gender as definable and cognizable classes, relying on social science evidence-based understandings of these classifications. Section I.A focuses on the current understanding of gender and contemplates the ramifications of this change on equal protection jurisprudence. Section I.B undertakes the same analysis for race.
Part II suggests a new framework for how equal protection jurisprudence should function in light of these scientific and epistemological changes. In employing this framework, a court considering an equal protection claim would balance the government interest against the individual interest on a case-by-case basis. This approach would change equal protection analysis at all levels of the judiciary: in state courts, federal district courts, circuit courts, and at the Supreme Court.
Part III justifies this new framework as a more egalitarian way to undertake equal protection analysis because it allows a court to consider each case’s unique factual circumstances, while still operating within the bounds of established constitutional principles. Part IV applies the suggested framework to two cases—one retrospective and one prospective. The retrospective case focuses on a classification on the basis of age and mirrors the facts of Massachusetts v. Murgia. The prospective case focuses on the United States’s military ban on transgender individuals and mirrors the facts of Karnoski v. Trump.