Skrmetti and birth equality (Part III)

Brothers in Law is a recurring series by brothers Akhil and Vikram Amar, with special emphasis on measuring what the Supreme Court says against what the Constitution itself says. For more content from Akhil and Vikram, please see Akhil’s free weekly podcast, “Amarica’s Constitution,” Vikram’s regular columns on Justia, and Akhil’s new book, Born Equal: Remaking America’s Constitution, 1840-1920.

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Our first two posts introduced readers to the profound principle of birth equality, a grand idea with deep roots in the Constitution’s text and in the Supreme Court’s jurisprudence, when each is studied holistically. Suppose state or federal officialdom facially treats two persons born under the flag differently because of how they were born – because one was born white and the other Black; because one was born male and the other female; because one was born a Jew and the other a gentile; because one was born to married parents and the other to unmarried parents; because one was born eldest and the other youngest; or because one was born to citizen parents and the other not. Such attempted differential treatment should set off alarm bells. Heightened judicial scrutiny is generally warranted, lest government wrongly exalt some Americans or wrongly demean others simply because of a mere accident of birth beyond a person’s control, a moral irrelevance for which one deserves in the eyes of the law neither credit nor blame.

We have argued that the Tennessee law at issue in United States v. Skrmetti warranted heightened scrutiny precisely because it facially discriminated on the basis of birth sex. We ridiculed the silly counterargument, embraced by the Skrmetti majority, that the Tennessee law discriminated on the basis of age, not sex. No, we said, the Tennessee law obviously discriminated on the basis of both. That is Logic 101. Such a law, we argued, generally deserves heightened scrutiny. (Caveat: heightened scrutiny means judicial skepticism, not judicial invalidation per se.)

But now consider a law that does not facially classify on the basis of sex but does facially discriminate on the basis of age. Why isn’t such a law generally suspect simply because of its age classification? After all, a typical age-based law is logically birth-based. It pivots on one’s birth-date, something over which a person has no control and that doesn’t ordinarily justify reward or punishment. Come the next national Election Day – Nov. 3, 2026 – those born before midnight on Nov. 3, 2008 will typically be allowed to vote, whereas those born afterwards will not. But isn’t it is a mere accident of birth whether one was born one minute before or one minute after this magic moment? More generally, why do age laws categorically qualify for ordinary rational-basis scrutiny rather than heightened scrutiny?

One easy answer: Pre-Skrmetti doctrine says so, in a long string of repeated and emphatic rulings going back to the 1976 case of Massachusetts Board of Retirement v. Murgia, in which the Burger court used rational-basis review to rubber-stamp a law requiring police officers to retire at age 50. Middle-aged folk confronting age-discriminatory laws, declared the court, did not deserve heightened judicial protection; such folk were not “sufficiently akin” to, say, Blacks or Jews.

But that can’t be the entire answer because case law is not always right, even if longstanding. Plessy in 1953 was longstanding. So was Lochner in 1937. So was Roe in 2021. More to the point, so was Geduldig before Skrmetti came along, and we blasted Geduldig in our last post. Why do we now embrace Murgia?

A second easy answer: The Constitution itself squarely condemns sex discrimination and in some respects squarely blesses age discrimination. Constitutional doctrine must ultimately find its roots in the constitutional document itself, read holistically. That has been our mantra over the years and will be our mantra here on SCOTUSblog.

The 19th Amendment expressly prohibits voting rules based on sex. (This amendment surely categorically prohibits rules disfranchising pregnant persons as such, regardless of the silly things said in Geduldig and Skrmetti.) By contrast the 26th Amendment expressly permits some voting rules based on age by limiting its protections to those 18 and older. (For more on the latter amendment, see this landmark 1995 article by Vik.)

Elsewhere, the Constitution itself features age-discriminatory rules for eligibility to the House, the Senate, and the presidency. Also, and crucially: The global birth-equality rule embedded in the first sentence of the 14th Amendment – that all Americans born under the flag are born equal citizens – was widely understood by its framers and ratifiers to guarantee equal civil rights to women alongside men, but was not widely understood to guarantee equal civil rights to, say, 10-year-olds on one side and 30-year-olds on the other.

But even all that can’t suffice. We must ask why the Constitution treats age differently. Is it justified in doing so? If not, then perhaps the document should be amended, just as the Founders’ Constitution was properly amended by the 13th, 14th, 15th, and 19th Amendments.

As we have already explained in our first two posts, the original Constitution in a wide range of provisions from Day One embodied a grand birth-equality norm – in two prohibitions on bills of attainder, two condemnations of titles of nobility, a repudiation of blood-corruption rules, and a guarantee of republican government, as distinct from hereditary monarchy and hereditary aristocracy. At the same time, however, the Founders’ Constitution allowed, and even bolstered, hereditary slavery – most notoriously in the three-fifths clause (which warped not just the House but also the electoral college) and the fugitive slave clause.

This fundamental contradiction – between birth equality and birth inequality – precipitated the Civil War. And the contradiction ended only after four glorious post-war amendments (the 13th, 14th, 15th, and 19th) smashed hereditary slavery and guaranteed birth equality across the board for Blacks and whites, men and women. This is the epic tale of America’s unfolding Constitution recounted in Akhil’s forthcoming book, Born Equal: Remaking America’s Constitution, 1840-1920, now available for pre-order. (On the right, Federalist Society co-founder and co-chair Steve Calabresi has proclaimed it “one the most important books ever written.” On the left, ACLU stalwart Nadine Strossen has also endorsed it with enthusiasm. The book has also recently won plaudits from both Publishers Weekly and Kirkus Reviews; the latter has just awarded it a coveted Kirkus Star, a badge of distinction given to only a handful of constitutional law books this century.)

At least two big ideas support a wide range of age-based laws, and suggest that these laws should not be treated with categorical hostility or suspicion. Today, we shall consider only the first of these two ideas: Some forms of age discrimination actually bolster the birth-equality idea, understood not merely formally but realistically.

Imagine a world in which any adult can be a member of the House. In this alternative universe, which 24-year-olds are most likely to be elected? Realistically, those born to wealth and fame. All 24-year-olds are formally eligible, but the game is functionally rigged. Low-born and middle-born folk have not yet had much chance to shine. High-born folk do not yet have much of a track record of their own and may well win simply because of their names and fortunes.

Data from the founding era confirm this point. As Akhil documents in great detail in chapter 2 of his 2005 book, America’s Constitution: A Biography, young House members (ages 25 through 29) and young senators (ages 30 through 34) in the early republic were roughly three times as likely to be “favorite sons” of powerful fathers or prominent older brothers as those elected at an older age.

The rule that a president must be at least 35 years old likewise aimed in part to level the functional playing field for low-born and middle-born folk. In drafting this age-bar, the framers of course knew that the sitting prime minister of Great Britain had won his post at age 24 and had done so thanks largely to the fact that he was born with obvious advantages – born William Pitt, the son and namesake of his great father who himself had been prime minister.

When the Constitution came before the American public for ratification, one key Federalist pamphleteer observed that Britain’s king “is hereditary, and may be an ideot, a knave, or a tyrant by nature.” Here, the pamphleteer obviously had in mind the incumbent British monarch George III, who ruled by dint of birth. But, wrote the pamphleteer – perhaps too sweepingly and optimistically, with the benefit of hindsight – America’s president “cannot be an ideot, [and] probably not a knave or tyrant, for those whom nature makes so discover [i.e., reveal] it before the age of thirty-five, until which period he cannot be elected.” According to another Federalist pamphlet, a president would be highly unlikely to mutate into a “hereditary sovereign” because “the Constitution has provided, that no person shall be eligible to the office, who is not thirty-five years old; and in the course of nature very few fathers leave a son who has arrived to that age.”     

The age rules in the Constitution were thus essentially anti-dynastic, pro-birth-equality. They aimed to give low-born and middle-born folk a more realistic chance to win, and to force high-born folk to earn office based on their own track records rather than on their inherited advantages of fame and fortune.

Herein lies a key lesson: law must at times go beyond mere formalism. Purely formal equality may not be real equality. As we have already mentioned, the law in Obergefell did not formally discriminate on the basis of sexual orientation. Formally, it allowed a gay man to marry – so long as he married a woman! But this formal equality masked obvious inequality: A straight man could marry the person he truly loved, but a gay man could not.

We shall return to this crucial point about formal versus real equality in future posts, when we analyze how Skrmetti should have been decided, had the court applied a proper heightened-scrutiny analysis to the facts of the case. But before we reach these issues, we need to confront a second big set of ideas underlying the Constitution’s openness to age discrimination. Stay tuned.