Wealth discriminations present a special problem for the Supreme Court in its interpretation of the Fourteenth Amendment, a problem which derives from the pervasiveness and ethical ambiguity of wealth as a principle of organization in our society. Both critics and supporters of wealth stratification recognize the ethical power of claims against wealth discriminations. Supporters confine their recognition to extreme examples in selected areas without necessarily being able to define an extreme case or defend the selection of areas. Critics damn the whole system. Because they believe, however, that wealth is a basic principle of organization in our society, they concede the improbability of claims ever being successful except for some extreme examples. The instability of this boundary between acceptable and unacceptable, vulnerable and immune, becomes critical when it is the subject of a claim of right under the Fourteenth Amendment. For, once the basic ethical claim has been embodied in a judicial doctrine, the problem of finding a stopping place becomes difficult. Courts, especially the Supreme Court, cannot make fluid compromises as legislatures do.' Consistency and neutrality are more than the touchstones of the best analytic work of the Court;2 to many, they are justice itself in the modem liberal state.3 Thus, if a doctrine is open to claims of wealth discrimination, in the sense that the elements of the doctrine are isomorphic with the ethical sentiments, an acceptable stopping place will not be found until the ethical strength of the claims diminishes. Yet wealth discriminations do not concentrate in special sectors of the society; they are to be found in smooth gradients throughout. For this reason, an open or authentic doctrine, which is also neutral and principled, may be swept irresistibly into problems vastly beyond the competence of courts. Could the doctrine simply not be open to all? Callous indifference to the extreme cases would be difficult to sustain against the ethical background of our society. What about partial openness, a doctrine that recognizes the injustice of wealth discriminations in some oblique, non-expansive way? The answer to that question, and some suggestions about some other ways to solve the paradoxes of constitutional condemnation of wealth discrimination, are the subjects of this article. It is maintained here that the beginnings of open doctrines about wealth discriminations established by the Warren Court have been halted or reversed by the Burger Court, principally through doctrines which are not open, or sensitive, to these discriminations. The process of desensitizing legal doctrines from ethics and politics needs a name; I will refer to it in this article, following Professor Judith Shklar, as formalism. Legalism, as defined by Shklar, includes a tendency to regard law as separate from morals and politics. Formalism is a greater degree of legalism and strives for a more complete separation of law from reality by giving increased attention to definitions, that is, the orderliness and internal consistency of concepts.4 Note the distinct meanings of formalism as used here. Formalism is not arbitrariness if arbitrariness means lack of logical consistency, because consistency is a primary goal of formalism. Indeed, if the Court responds to powerful pressures, internal consistency will be common to both open and closed doctrines. In open doctrines it might be called legalism, because consistency of rules is one thing that distinguishes law from ethics and politics; and consistency is the force of expansion within open doctrines that thrusts the law toward economic contradictions and creates the difficulty of finding a defensible stopping place. Either type of doctrine may also be logically inconsistent if the minimal demands of legalism are not met. Formalistic doctrines tend to become arbitrary in application, however, because their emphasis is exclusively upon clarity and consistency. Because the internal logic of formalistic doctrines is not tailored to recognition of underlying ethical problems, the natural tendency of the formalistic model is to lead the Court away from ethically significant breaches of equal protection; that is, problems which are logically prior in the model may be socially insignificant. If the Court follows the internal logic, critics will wonder what possible set of priorities can explain the allocation of judicial relief. The lack of underlying ethical priorities will seem arbitrary because the Constitution itself is believed to express the ethical priorities common to our people. On the other hand, to counter this tendency, and to recognize the great force of claims against extreme abuses, the Court may apply the formalistic doctrines mainly to the same kind of problems that would have received attention under non-formalistic doctrines. Then, the opposite kind of arbitrariness becomes apparent. Instead of asking why the Court is not following the Constitution, critics will ask why it is not following its own doctrine. The outlines of what would be the open doctrine become discernible in holdings and the rationales of dissenting Justices who adhere to the open doctrines will seem increasingly apt. The particular tendency toward formalism (it is not formalism full blown) which has stymied the open doctrines of the Warren Court is a model of "due process" (in a non-technical sense embracing some equal protection decisions). The model was basically established by Justice Harlan in his dissent in Griffin v. Illinois!; Narrow in focus, it concentrates on the individual before the Court rather than on social classes or institutions or patterns of sociolegal conflict, on the explicit words and verbal categories of laws rather than their actual effect, on the dominance of the law in a situation rather than the interaction of law with other factors, on the technical neatness of the means-ends relationship rather than the end and actual effect of the law, and on the possible purpose of a law discerned from its logical properties rather than the actual purpose known from its social and political context. There is a master dichotomy here, a familiar one in constitutional law; it might be called law-sensitive vs. reality-sensitive, de facto/ de jure writ large.6 Showing the presence of this model, and criticizing it, are the major purposes of this article. Criticism would fall short, however, if it stopped at the flaws of the formalistic model. Those flaws are inescapable if open doctrines cannot be designed which include a defensible stopping place short of the unenforceable judicial order to remake the face of society. I will argue here that suitable stopping places can be found. A proper constitutional doctrine of wealth discrimination, based upon the special role of the Court, would have an acceptably narrow focus and, within that focus, the task of actually proving wealth discrimination is difficult. In other words, the conceptual expansiveness of the authentic doctrines is less than is often represented, and, in addition, is properly checked by stern problems of proof. To exploit the possibilities of this counterpoise, however, the Court must be somewhat more creative with remedies than it has been, and must deal differently with social science as a body of knowledge. Perhaps it should be made explicit that conceptual restraint is not the same as formalism, which is only an extreme form of conceptual restraint. Open doctrines may possess conceptual limits; the difficulty will be to find principled limits.
