Broken Records: Reconceptualizing Rational Basis Review to Address “Alternative Facts” in the Legislative Process
In 2016, North Carolina passed “HB2,” also known as the “bathroom ban”—a law prohibiting transgender individuals from accessing public restrooms corresponding to their gender identity—based on the unfounded fear that cisgender men posing as transgender women would assault women and girls in bathrooms. Around the same time, Alabama enacted a punishing immigration law in which sponsors distorted statistics regarding the undocumented population by using the terms “Latino/Hispanic” and “illegal immigrant” interchangeably. These laws are reflective of a larger pattern. In our increasingly polarized political climate, policymakers are affirmatively distorting legislative records and promoting dubious justifications for their policy goals—that is, they are legislating on the basis of “alternative facts”—in ways that pose unique harms for those excluded from the political process.
Some scholars have responded to the phenomenon of alternative facts in the legislative process by arguing for an enhanced analysis of legislative motivation. Others argue for a more general reexamination of the relationship between courts and legislative fact. This Article argues instead for a middleground approach whereby courts perform a threshold legal analysis to determine whether a given piece of legislation was enacted over a “broken legislative record.” Should a litigant persuade the court that a challenged act is predicated on a distorted factual foundation, such that no rational legislator could have supported its enactment, the burden would shift to the government to demonstrate that its ends are grounded in some objective measure of basic truth or rationality. If the government cannot do so, the law should fail.
Broken records review looks at facts relied upon (in all likelihood) in bad faith; it is not concerned with bad faith itself. This leads to a number of descriptive and normative implications. First, legislative rationales falling outside of the factual realm, including purely moral justifications, would not be reachable by a broken records challenge. Moreover, while the “bite” of broken records scrutiny may lead some to raise the specter of Lochnerian judicial overreach, the inquiry is far more limited and would not lead to the invalidation of appropriate legislative policy choices. Indeed, the breadth of a broken records challenge would be limited to a review of whatever factual bases were actually employed to support a given piece of legislation.
One appeal of broken records review is that it echoes a customary judicial determination grounded in fact: indeed, the reasonable-legislator standard bears a useful resemblance to the reasonable-juror standard routinely considered during summary judgment. And the roadmap for litigants to follow is clearer than what other scholars propose: groups seeking to invoke the Supreme Court’s countermajoritarian prerogative can focus on more objective criteria—either gross misrepresentations of the number of credible examples of the evil allegedly targeted or other evidence counter to the legislative narrative—instead of pushing for de novo review of legislative factfinding or divining the subjective impulses of legislatures to show animus. Far from an open-ended invitation for courts to undertake legislative factfinding, the process proposed by this Article would simply empower judges to scrutinize invidious legislation more carefully by addressing the structural defect of broken legislative records.