Citation
Nicholas Stephanopoulos, Political Powerlessness, 90 N.Y.U. L. Rev. 1527 (2015).
Abstract
This Article identifies a hole at the heart of equal protection law. Under long-established doctrine, a group’s political powerlessness is a factor in determining whether it constitutes a suspect class warranting heightened scrutiny — but neither courts nor scholars have agreed on what powerlessness means. The Article offers a theoretically sound definition: a group is relatively powerless if its aggregate policy preferences are less likely to be enacted than those of similarly sized and classified groups. Applying this definition empirically, it finds that gay people satisfy the definition, as do racial minorities and women — but that the poor do not, contrary to widespread assumption. The Article then addresses two serious objections: that the analysis relies on controversial empirical claims, and that powerlessness should be irrelevant to suspect class status.