Interrogating Iqbal: Intent, Inertia, and (a Lack of) Imagination

In Ashcroft v. Iqbal, the Court reaffirmed the long-standing equal protection doctrine that government actors can only be held liable for discriminatory conduct when they purposefully rely on a forbidden characteristic, such as race or gender, in promulgating policy; to simply know that minorities and women will be adversely affected by the law does not deny these groups equal protection under the law. This Essay interrogates this doctrine by taking a closer look at Iqbal and Feeney, * Maureen B. Cavanaugh Distinguished Faculty Scholar & Professor of Law, The Dickinson School of Law of the Pennsylvania State University. Email: vcr1@psu.edu. Thanks to Nancy Welsh for inviting me to participate in this symposium, to Alex Reinert for the background information on Javaid Iqbal, to my co-panelists Ramzi Kassem and Shoba Wadhia for their participation on our race discrimination panel, to Jaime Bumbarger, for excellent editorial assistance, and to Stephen Fleury and the rest of the PENN STATE LAW REVIEW board and staff for their industry and dedication. Thanks to Dean Phil McConnaughay for his support of this and all my work, and most important, to Corie, Ryan, Julia, Matthew, and my family in the Philippines and Singapore for their grace and love. All errors that remain are mine alone. 1420 PENN STATE LAW REVIEW [Vol. 114:4 the thirty-year-old precedent the majority cited as the source of its antidiscrimination standard. Because Feeney was cited in neither of the lower court opinions, its reappearance in Iqbal signals the Court’s reluctance to intervene in matters (even tangentially) related to national security even if the government’s allocation of burdens and benefits perpetuates societal racial and gender privileges. In Feeney, the Court upheld a Massachusetts law granting benefits to war veterans, even though the state legislature was aware that less than two percent of the veterans at the time were women, owing in part to women’s exclusion from military service; thirty years later, the Iqbal Court dismissed constitutional claims against two high ranking federal officials responsible for orchestrating modern-day round-ups of noncitizens from so-called terrorist-breeding states, even though these officials knew their policies would disproportionately burden individuals of a certain racial, religious, and citizenship background. Both cases illustrate the inertia that has befallen the Court as it appears unwilling to engage in the traditional balancing of government interests against individual rights on the theory that the disaffected minorities must essentially prove that lawmakers bore them the equivalent of ill will or animus—in Feeney’s words, reiterated verbatim in Iqbal: that the decisionmakers chose a course of action “because of, not merely in spite of, [the action’s] adverse effects upon an identifiable group.” By taking a closer look at the challenged laws in Feeney and Iqbal, by examining the Court’s choice to defer to the political branches’ decisions to press ahead despite the laws’ effects upon minority groups, and by reminding ourselves of times when the Court’s imagination and innovative thinking stretched beyond the confines of formal rational basis review, this Essay explores the limits inherent in deferring to political actors, especially when we know they are consciously perpetuating privilege, furthering discrimination by default. Even in matters that arguably relate to national security and foreign policy, the Court should never shirk its responsibility to closely scrutinize discriminatory governmental policies that were deliberately adopted.