Treading the Supreme Court’s Murky Immutability Waters

Marc R. Shapiro, Treading the Supreme Court’s Murky Immutability Waters, 38 Gonz. L. Rev. 409 (2003).

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After spending several weeks analyzing the Supreme Court’s equal protection jurisprudence, my constitutional law professor asked the question that prompted this Comment. In his socratic fashion, he inquired, “What factors guide the Supreme Court in making its determination as to whether a group may be considered a suspect class?” The chosen student replied astutely, “One factor is immutability.”

The concept of immutability, as defined by the Supreme Court, encompasses traits not susceptible to change. Drawing upon this broad definition, the student noted sex and race are two characteristics that fall within the category of immutability and, accompanied by other factors, trigger heightened scrutiny analysis. The professor then posited several hypotheticals which required the student to analogize characteristics such as religion, national origin, and left-handedness, to race and sex.

Although the professor praised the student’s answers, I was troubled by the response. Perhaps, even more so, I was troubled by the professor’s approval of the response. This uneasiness was not due to the student’s method. Rather, it was a result of the Supreme Court’s unsuccessful attempt to define immutability by way of analogy….Read More

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