This essay uses Owen Fiss’ treatment of equality doctrine in “Groups and the Equal Protection Clause” to demonstrate the influence of judicial role conceptions on equality jurisprudence. Fiss’ conception of the judiciary’s role in elaborating and enforcing public norms profoundly shapes his articulation of the anti-subordination principle. More specifically, Fiss looks to the federal judiciary unilaterally to declare public law truths and to impose those truths on noncompliant bureaucrats. This static, almost imperial role places great pressure on the judiciary to adopt unitary equality norms that can be implemented, at least in theory, through top-down imposition. Fiss’ commitment to a top-down view of norm elaboration, with the judiciary at the top, prevents him from taking advantage of the potential suppleness of the anti-subordination principle. This essay shows how Fiss’ top-down-ness ultimately infects his elaboration of the anti-subordination principle itself, making it vulnerable to Fiss’ own criticisms of the anti-discrimination principle. It then suggests the promise of developing equality theory in light of a more dynamic, less jurocentric conception of the judiciary.
Jurisprudence | Law
Susan P. Sturm,
Owen Fiss, Equality Theory, and Judicial Role,
Issues Legal Scholarship
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3487