Finding New Constitutional Rights through the Supreme Court’s Evolving “Government Purpose” Test under Minimum Scrutiny

By now we all are familiar with the litany of cases which refused to find elevated scrutiny for so-called “affirmative” or “social” rights such as education, welfare or housing: Lindsey v. Normet, San Antonio School District v. Rodriguez, Dandridge v. Williams, DeShaney v. Winnebago County. There didn’t seem to be anything in minimum scrutiny which could protect such facts as education or housing, from government action. However, unobtrusively and over the years, the Supreme Court has clarified and articulated one aspect of minimum scrutiny which holds promise for vindicating facts. You will recall that under minimum scrutiny government’s action is sustained if it is rationally related to a legitimate government purpose. That has seemed hopelessly vague. However, through a series of cases the Supreme Court has now made it clear that the three prongs of the test—rationality, relationship and government—are questions of fact for the trier of fact. This opens up the possibility that civil discovery can show, with respect to criteria for these prongs, that government fails to meet minimum scrutiny. Actually, the tendency of the Court’s minimum scrutiny jurisprudence is to severely disfavor discretion, and strongly favor factual showing, in minimum scrutiny adjudication