The Price of Victory: Political Triumphs and Judicial Protection in the Gay Rights Movement

A widely held conception of the federal courts is that they are supposed to protect the politically powerless and vulnerable, particularly from state predations. The famous Footnote Four of United States v Carolene Products Co first established the principle that courts should pay special attention to the claims of “discrete and insular minorities.” This standard has grown to become an important part of the judiciary’s heightened scrutiny analysis—a part that this Comment argues should be largely abandoned. To be sure, the logic is compelling: heightened scrutiny should be accorded only to groups who cannot protect themselves in the political process. Once they begin flexing political muscle, courts ought to step aside and let the democratic system take the reins. But this paradigm leaves many minority groups in a perplexing paradox. Since truly powerless groups do not typically receive judicial protections, a vulnerable social group must show political power in order to gain the attention of the courts. But, by showing this power, vulnerable groups simultaneously give the judiciary a doctrinal excuse to reject their claims.