Justifying Motive Analysis in Judicial Review
Motives concern us in ordinary life and in the law of torts and crimes, and that concern is justified by consequentialist ethics. Despite occasional judicial protestations, motive analysis pervades large parts of constitutional law. Illegitimate motives aimed at suspect classes, or "designed to strike" at any number of rights identified as fundamental, presumptively invalidate the official actions that they animate. The consequentialist arguments for the use of motive review in this class of cases are relatively simple. Such illegitimate official motives tend to cause bad distributions of tangible benefits and burdens, or cause direct cognitive or emotional harm to the targets of derision or denigration. Difficulties emerge, along with some potentially generative possibilities, in a set of cases which includes U.S. Department ofAgriculture v. Moreno, Cleburne v. Cleburne Living Center, and arguably Romer v. Evans and Lawrence v. Texas. Those cases involve neither suspect classes nor fundamental rights, yet in each case, the Court invalidated political branch action on grounds of more general destructive motives. Perhaps it is this broader normative concern that undergirds motive law in general. Can motive analysis be justified in this set of cases on consequentialist grounds? Or is the only explanation deontological-that such actions are wrong in themselves, regardless of their consequences? Doubts about consequentialistjustification are legitimate. In cases involving more ordinary interests, normally consigned to rational basis review, almost any set of consequences will be accepted by courts unless an illegitimate motive is found. Thus the deep concern seems to be with some inherently morally tainting property of illicit motives, not with the consequences of such motives. Despite these appearances, this Article argues that consequentialism is the moral theory best fitting these cases. Along the way, it explores other neglected issues connected with motive analysis, including whether judicial motive talk is inevitably about mental states, and the extent to which government actions can be prohibited based on the psychic harm caused by expression without unduly restricting the ability of governments to speak.
17 William & Mary Bill of Rights Journal 191 (2008).