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Rationaliy is dead! Long live rationality! Saving rational basis review 23
benefits to people with identical service but who had no railroad connections
in 1974. Justice Rehnquist upheld the law, characterising the differentiation as
between ‘persons who had actually acquired statutory entitlement to windfall
benefits while still employed in the railroad industry [and those] … who were
no longer in railroad employment when they became eligible for dual
benefits’. 115 Justice Brennan in dissent preferred this description: ‘A retiree is
favoured by retention of his full vested earned benefits if he had worked so
much as one day for a railroad in 1974 ... [T]he fortuity of one day of
employment in a particular year … govern[s] entitlement to benefits earned
over a lifetime.’ 116
Judged in its overall context, the majority phrases the law as
distinguishing on the basis of when a person became eligible for social security
benefits. The dissent sees the classification as based on time. While this is
partially a question of rhetoric – both approaches seem like accurate
descriptions – the different way the classification is phrased seems largely
determinative of the outcome.
The law can also be treated at different levels of abstraction. This
technique is best demonstrated by cases where the government is defending
a regulatory scheme that has the effect – intended or otherwise – of
excluding a particular group. A comparison of two cases concerning the
regulation of hairstylists and florists is instructive. In Cornwell v Hamilton, a
district court held that California’s requirement that African hair-braiders
pass its cosmetology exam was not rationally related to a legitimate
government purpose. 117 It conducted a thorough examination of the
activities in which the plaintiff hair-braiders engaged and the subject matter
of the exam questions, and concluded that the plaintiff’s activities made up
only 11 per cent of the exam; 118 not enough in its view to establish a
rational relationship. 119 Of course, the court perhaps required a stricter than
usual degree of relationship between means and ends, but if it had not
considered the detail of the exam and seen the law merely as requiring
some sort of exam it might well have reached a different conclusion.
The failure to consider the specific questions in an exam is part of the
explanation for the result in Meadows v Odom. 120 The statute required all
florists to take an exam before they could arrange flowers. Rather than
115 Fritz (n 18 above) 178.
116
Fritz (n 18 above) 196 - 197.
117 80 FSupp 2d 1101 (SD Cal 1999).
118 Cornwell v Hamilton (n 117 above) 1115.
119
Cornwell v Hamilton (n 117 above) 1108 1117 (‘Assume the range of every possible hair
care act to involve tasks A through Z. From the Court's perspective, Cornwell’s
activities would cover tasks A, B, and some of C. The state’s cosmetology programme
mandates instruction in tasks B through Z. The overlap areas are B and part of C. This
minimal overlap is not sufficient to force Cornwell to attend a cosmetology school in
order to be exposed to D through Z, when she only needs B and a portion of C’).
120
360 FSupp 2d 811 (MD Louisiana) vacated as moot by 198 FedAppx 348 (5th Cir
2006).