Thoughts on Rodriguez: Mr. Justice Powell and the Demise of Equal Protection Analysis in the Supreme Court

Since the fall of 1969 when Warren Earl Burger took his seat as Chief Justice, the academic community has placed the Supreme Court under a thorough and searching examination. Coming on the heels of enormous and far-reaching activity in the judicial branch, the Burger Court has been called to account for both its adherence to and its rejection of the Warren Court\u27s innovations in constitutional adjudication. The purpose of this article is to continue that constructive criticism by taking stock, after five years, of the Court\u27s performance in one significant class of cases-those interpreting the equal protection clause of the fourteenth amendment.5 Following earlier works,6 this paper will focus on Mr. Justice Powell and attempt, through a discussion of his contributions, to analyze the success of the Court as a whole in an area of increasing judicial concern. The scope of the article requires that it begin with an assessment of equal protection doctrine as it developed in the Warren Court era and as it stood at the end of the October 1973 Term. Mr. Justice Powell\u27s views will then be examined, with a view toward identifying and appraising his affinity for a case-by-case, balancing approach to constitutional adjudication, borrowed from the late Mr. Justice Harlan. Ultimately, this paper will defend the thesis that equal protection analysis, as it is conceived and applied by Justice Powell, is not equal protection at all but a Harlanesque notion of fundamental fairness, derived from the due process clause