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Full-Text Articles in Supreme Court of the United States
First Amendment Equal Protection: On Discretion, Inequality, And Participation, Daniel P. Tokaji
First Amendment Equal Protection: On Discretion, Inequality, And Participation, Daniel P. Tokaji
Michigan Law Review
The tension between equality and discretion lies at the heart of some of the most vexing questions of constitutional law. The considerable discretion that many official decisionmakers wield raises the spectre that violations of equality norms will sometimes escape detection. This is true in a variety of settings, whether discretion lies over speakers' access to public fora, implementation of the death penalty, or the recounting of votes. Is the First Amendment violated, for example, when a city ordinance gives local officials broad discretion to determine the conditions under which political demonstrations may take place? Is equal protection denied where the …
Expressivism, Empathy And Equality, Rachel D. Godsil
Expressivism, Empathy And Equality, Rachel D. Godsil
University of Michigan Journal of Law Reform
In this article, Professor Godsil argues that the Supreme Court should not limit its application of heightened scrutiny to facially neutral government actions motivated by discriminatory intent, but rather, that the Court should apply such scrutiny when the challenged government action expresses contempt or hostility toward racial, ethnic, and gender groups or constitutes them as social inferiors or stigmatized classes. This article builds upon recent scholarship seeking to transplant this form of expressivism from the Establishment Clause to the Equal Protection context. However, this article contends that this scholarship has misconceived the test to be applied. For any expressive theory, …