Justice Marshall's Dissent and the Footnote 4 Debate

A Doctrinal Failure?

While the majority in Cleburne struck down the zoning ordinance, Justice Thurgood Marshall saw the ruling as a procedural and doctrinal failure. He argued that by refusing to recognize intellectual disability as a quasi-suspect class, the Court was effectively slamming the door on future civil rights claims while pretending to offer a victory.

The 'Two for the Price of One' Critique

Marshall famously critiqued the majority for a 'two for the price of one' approach. If the ordinance failed the rational basis test, there was no need to reach the second question. By going further and denying quasi-suspect status, the Court violated the principle of judicial restraint.

The Sliding Scale of Review

Instead of the Court's rigid three-tier model, Marshall proposed a sliding scale of review. In this model, the level of judicial suspicion shifts based on the importance of the interest—like housing or education— and the historical vulnerability of the group being excluded.

Footnote 4: Purposeful Unequal Treatment

Applying the Carolene Products framework, Marshall focused on the 'grotesque' history of discrimination. He argued that the institutionalization and forced sterilization of disabled people mirrored the purposeful unequal treatment seen in race-based cases, demanding the shield of heightened scrutiny.

Powerlessness and Immutability

The majority argued that protective laws proved disabled people weren't powerless. Marshall countered that the very need for such laws was evidence of a group's vulnerability. While disability is a 'real' difference, Marshall insisted that immutability shouldn't allow the state to act on irrational fears rather than actual capability.

Recap: Marshall's Dissent

Let's review Marshall's core arguments. He believed that the 'tiers' were too rigid and that the history of disability discrimination was too severe to be ignored. Take a moment to review these concepts before we apply them to a new scenario.

The 'As-Applied' Trap

Consider a state law excluding people with cognitive disabilities from jury service. Using Marshall’s 'sliding scale' logic, why is the 'rational basis' standard a long-term loss for this group? Type your analysis below.