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This Article offers an account of how courts respond to social change, with a specific focus on the process by which courts "tip" from one understanding of a social group and its constitutional claims to another. Adjudication of equal protection and due process claims, in particular, requires courts to make normative judgments regarding the effect of traits such as race, sex, sexual orientation, or mental retardation on group members' status and capacity. Yet, Professor Goldberg argues, courts commonly approach decisionmaking by focusing only on the 'facts" about a social group, an approach that she terms 'fact-based adjudication." Professor Goldberg critiques this approach for its flawed premise that restrictions on social groups can be evaluated based on facts alone and its role in obscuring judicial involvement in selecting among competing norms.

The Article also observes that because fact-based adjudication enables courts to leave norms unacknowledged, it does serve the judiciary's institutional interests by maximizing flexibility for future decisionmaking regarding restrictions on group members' rights. At the same time, however, this approach facilitates inconsistency in theory and outcome by enabling courts to variously embrace and reject traditional rationales for restricting social groups without having to justify the inconsistent treatment of group-related norms. As a possible remedy for these flaws, the Article considers the costs and benefits of greater judicial candor regarding the normative underpinning of decisions. Although Professor Goldberg ultimately advocates only a limited modification to the current fact-based adjudication regime, she concludes that our theories of judicial review will improve, both with respect to descriptive accuracy and normative bite, to the extent they recognize the inevitable judicial involvement in making normative judgments about social groups.


Civil Rights and Discrimination | Constitutional Law | Law