Correcting Inequality through Law

The Indian Constitution explicitly incorporates both an equal protection and an anti-discrimination clause. It also provides for affirmative action measures in favor of the socially, economically, and educationally backward classes of people. This case study examines how the court incorporates the social, economic, and communal diversity of the country as well as the specific challenges arising from it within the constitutional framework. First, it describes the judicial test developed by the Court. Second, it aims to understand if the Court takes into consideration other external variables not explicitly incorporated within the test. The analysis highlights how the Court does acknowledge the perverse political incentives created around affirmative action (reservation) politics in the country and has passed multiple judicial legislations to minimize the risk of such politically motivated government actions.

This case study analyzes equal protection in Taiwan from both the statutory and jurisdictional perspectives. First, it provides a brief introduction of the history of Article 7 - the general equal protection clause of the Taiwan Constitution. After summarizing the two dominant strands of the academic discourse, an empirical analysis reveals that the jurisdictional understanding of Article 7. This can be chronologically divided into three stages, in which the Taiwan Constitutional Court gradually moves from the formal to the substantive approach, from the reasonableness test to the proportionality test. It currently develops a merged approach of constitutional review, which combines the thoughts of proportionality and tiered judicial scrutiny.

The case study analyses the equality jurisprudence of the Supreme Federal Court of Brazil (STF) and identifies patterns in the judicial practice of the Tribunal. The mapping reveals that the concept of equality developed in the Court is tripartite, covering formal and substantive equality, as well as equality as recognition, that is, equality as respect for the identity and differences of minority groups. Under this tripartite conceptualization of equality, affirmative action does not emerge as an exception of the principle of equality, but as the very realization of the latter. In general, the STF has has been very receptive towards positive measures, generally finding them to be in consonance with equality, reaffirming the state obligation to institute them to the benefit of historically marginalized groups, and striking down measures for being under-inclusive.

The case study analyses the equal protection doctrine of the U.S. Supreme Court. The core of the study is an empirical analysis of all equal protection cases of the Supreme Court in the 50 years from 1970 to 2019. It shows that the level of scrutiny applied by the Court is highly predictive of whether the latter finds a violation of the equal protection clause. While this is not surprising, a closer analysis draws a more nuanced picture. Even if the Court does not apply strict or intermediate scrutiny, challenges of distinctions based on suspect classifications have a rather high success rate. At the same time, the success rate for distinctions based on race or sex is lower than one might expect considering the heightened standard of scrutiny that is triggered by these classifications. This finding suggests that the doctrine of tiered scrutiny does less work in shaping the equal protection case law than is often assumed.