When applying the Rational Basis standard of review, the Court seems to be giving the government ever-wider freedom to act as it sees fit, without any meaningful check from the judiciary. In 1949, Justice Jackson's concurrence in Railway Express v. New York lauds the "salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation."
In 1973, the Court said that a suspect classification would be "examined to determine whether it rationally furthers some legitimate, articulated state purpose." San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 17 (1973).
By 1980, United States Railroad Retirement Bd. v. Fritz saw Justice Rehnquist proclaiming that "where, as here, there are plausible reasons for Congress' actions, our inquiry is at an end." The Court no longer required that the actual reason for a law be rational. Rather, any sufficiently convincing post hoc justification that could be conceived of would suffice.
In 1993, the Court in FCC v. Beach gave up all pretense of oversight, and instead placed the burden on litigants challenging a discriminatory law "to negate every conceivable basis which might support it." One pictures competing attorneys filling up notebooks with possible justifications and counterarguments. If the government attorney manages to think of just one more than the challenger, it's a check in the win column.
The Court has done a neat job of ruling itself into a corner. When the Court found that the challenged Amendment in Romer v. Evans was discriminatory and motivated purely by hatred for homosexuals, the Court had to bludgeon the Rational Basis standard into a nearly unrecognizable state to enable it to strike the Amendment down. Critics who say that the Court was actually engaging in a stricter review are right. Unfortunately, the Court had very little choice. The Rational Basis standard has so little practical power to invalidate a law that the Court had to choose between dressing Intermediate Scrutiny in a hand-me-down Rational Basis t-shirt, or declaring sexual orientation a quasi-suspect classification and granting it the automatic protection of that stricter standard.
Comparisons to the sexist reasoning in Muller v. Oregon immediately spring to mind. Again, the Court granted a much-needed protection, while (albeit a tad more subtly) endorsing intolerance toward the class it was protecting by upholding a particular discriminatory perception, namely that sexual orientation is a voluntary, rather than immutable, characteristic.
All of that was the long way around to the following question; can the Rational Basis standard of review possibly get any more deferential? Is the chance to argue about the justification for the challenged legislation a certain thing, or will we see a day where the Court will simply deny certiorari if the government's list of justifications is longer than the challenger's list of arguments against them?
