The Supreme Court relies increasingly on anticlassification rules to implement the Constitution's various commands of evenhanded state treatment. These rules direct attention to whether an instance of a forbidden classification is present on the face of a challenged law. They contain two necessary steps. First, a court defines a general category of impermissible terms. Second, a court ascertains whether an instance of the category is found in enacted text--so triggering the familiar strict scrutiny analysis. So defined, anticlassification rules now dominate equal protection, free speech, "dormant" Commerce Clause, and even free exercise jurisprudence. The Roberts Court celebrates these doctrinal tests as "commonsense, " citing their administrability and mechanical quality as safeguards against problematic judicial discretion.
This Article challenges this account of anticlassification rules as simple and transparent. It draws extensively on conceptual tools from the philosophy of language to elucidate the inherent complications and internal tensions of the doctrine. Defining and drawing bounds around categories such as "race " and "content discrimination, " for example, cannot be done without a theory of what philosophers of language call "natural kinds " and "social kinds. " Yet when courts identify instances of impermissible categories in legal text, they tend to fluctuate erratically between semantic and communicative theories of meaning. A careful examination of these, and other, hidden premises of anticlassification clarifies apparent doctrinal inconsistencies. Absent a systematic theorizing of such difficulties, anticlassification rules cannot be coherently or consistently applied. Reckoning with these difficulties suggests that the Court's main normative justifications for anticlassification have a narrower reach than commonly appreciated.
INTRODUCTION I. THE ANTICLASSIFICATORY CONSTITUTION A. Definition of Anticlassification Rules 1. Identifying the Constitutionally Salient Category 2. Locating an Exemplar 3. Applying Strict Scrutiny B. The Paths of Anticlassification Rules in Constitutional Law 1. Horizontal Federalism 2. Equal Protection 3. Free Speech 4. Anti-Anticlassification: Free Exercise 5. How Anticlassification Regimes Cycle II. DELINEATING CONSTITUTIONALLY SALIENT CATEGORIES A. Natural Kinds and Social Kinds 1. Natural Kinds 2. Social Kinds B. Using Natural Kinds or Social Kinds to Build Constitutionally Salient Categories C. Social Kinds as Constitutionally Salient Categories: Interstate Commerce, Content, and Religion 1. Interstate Commerce 2. Content Discrimination 3. Religion 4. The Difficulty of Social Kinds for Law D. Equal Protection: Race as Natural Kind or Social Kind 1. How the Court Oscillates Between Race as a Natural and a Social Kind 2. The Costs of Classificatory Inconsistency III. FINDING CONSTITUTIONALLY SALIENT CATEGORIES IN LEGAL TEXTS A. The Opacity of Classificatory Practice B. Technical Frames for Reading Legal Texts C. Intrinsic Justifications for Anticlassification Rules 1. Dignity and Balkanization Harms from Communicative Content 2. The Challenge of Applying Anticlassification Rules The Dormant Commerce Clause 3. The Challenge of Applying Anticlassification Rules Equal Protection D. Extrinsic Justifications for Anticlassification Rules 1. Tracking Logics of Anticlassification Doctrine 2. Provocation Logics of Anticlassification Doctrine CONCLUSION
INTRODUCTION
In the opening moments of oral argument in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), (1) the constitutional challenge to private and public universities' use of race in admissions fleetingly seemed to stumble. Three Justices aired what seemed a grave difficulty in petitioner's case: Did Harvard College and the University of North Carolina (UNC), in fact, classify by race? If so, what did that entail? First, Chief Justice Roberts asked if consideration of an "essay about having to confront [racial] discrimination" counted as such. (2) Justice Kagan next pressed on whether applicants' "own racial experiences" could be legitimately considered. (3) Piling on, Justice Barrett questioned whether admissions could account for "racial identity ... as a source of pride." (4) The gist of these questions was that race might play a role in universities' admissions processes without counting as a problematic racial classification. Deflecting these inquiries, petitioner's counsel, Cameron Norris, offered a simple formula: universities may do these things, but they "just cannot consider race itself." (5) And when the Court finally resolved the case in June 2023, Chief Justice Roberts laid down that rule, unadorned by further explanation: universities that "can and do[] take race into account" employ a constitutionally suspect "racial classification." (6) The difficulties of oral argument, it seemed, had vanished into air--albeit without explanation.
The puzzles raised by Chief Justice Roberts, Justice Kagan, and Justice Barrett deserve closer attention. Across a range of constitutional contexts, the Supreme Court increasingly uses some sort of anticlassification rule to implement the Constitution's demands for evenhanded treatment. Anticlassification rules isolate the question whether instances of an impermissible category occur in the verbal formulation of a binding enactment. At the same time, they promise to exclude fickle judicial consideration of either intentions or purposes. Anticlassification rules are now prominent in the Equal Protection Clause of the Fourteenth Amendment, (7) as the affirmative action decision shows. They loom large, too, under the Free Speech Clause of the First Amendment (8) and the "negative" or "dormant" implications of the Commerce Clause. (9) In effect, the Court turns to anticlassification rules to vindicate all constitutional nondiscrimination commands.
To many of the Justices, widespread adoption of anticlassification rules seems just a matter of "common[]sense." (10) Such rules seem a paragon of simplicity. They are parsimonious to state and straightforward to apply. They are buffered from the distorting tug of judicial bias. Their candid transparency sustains the rule of law. (11) Anticlassification rules further advance a broader jurisprudential commitment to formalism by the Roberts Court. (12) (Formalism is understood as a fidelity to "the literal mandate[] of the most locally applicable legal norm" to the exclusion of "a wider range of factors," (13) such as legislators' intentions, administrators' behavior, or downstream consequences.)
This Article challenges this "commonsense" (14) view of anticlassification rules. By carefully mapping how the Court uses and justifies anticlassification rules, the Article reveals a series of difficult, and yet unavoidable, normative and analytic choices embedded within them. My aim is to explicate the hidden clockwork of anticlassification. For this purpose, I draw several technical terms from the philosophy of language. These include distinctions between "natural kinds" and "social kinds," (15) between "exemplar" and "prototypical" theories of categorization, (16) between the "sense" and the "reference" of words, (17) and between "semantic" and "pragmatic" theories of meaning. (18) Leveraging these tools from the philosophy literature, the Article aims to develop a lucid, tractable framework for evaluating when and how anticlassification rules can and should be used in law.
To be clear at the threshold, my aim is not to show that the Court must abandon all anticlassification rules in constitutional law. Rather, by casting light on necessary technical choices impelled by anticlassification's logic, I rather "propound a framework for meaningful debate" (19) about their legitimate deployment. At present, anticlassification rules beg more questions than they answer. Controversial normative choices are ignored. The Justices oscillate erratically between rule-like and standard-like versions of anticlassification. Once underlying normative choices are pulled out into the cold light of day, I believe, the decision whether to retain or abandon anticlassification turns out to hinge on hidden normative choices. Because anticlassification cannot and does not advance several of its notional goals, my analysis further suggests that it should be used in more carefully tailored ways that account better for technical and linguistic complexities.
To motivate an inquiry into anticlassification, it is useful to offer at the start some examples of why anticlassification regimes are not quite as simple as they first seem The oral argument in the 2023 SFFA case surfaces two of the several analytic difficulties explored in this Article. These two points illustrate--but do not exhaust--the complex choices immanent in anticlassification regimes.
First, the initial questions from Chief Justice Roberts, Justice Kagan, and Justice Barrett about what counts as consideration of race nicely illustrate how a forbidden classification can turn up during the process of rule application even if the verbal specification of a rule does not itself mention or pick out that category. (20) As the Justices intimated, an admissions protocol might ask an admissions officer to account for an applicant's beliefs, achievements, or sources of pride. (21) Its text would not mention or direct attention toward race as such. Nevertheless, as the Justices' questions drew out, such questions could (and likely do) predictably elicit responses in which race plays a role today. Given this predictable outcome, why shouldn't the rule trigger anticlassification concern? (22) Perhaps the "opaque" (23) relationship between the rule's content and the suspect criterion dilutes any constitutional concern.
But why? Consider how a similar question is handled in related statutory contexts, such as Title VII of the Civil Rights...
