INVIDIOUS DISCRIMINATION

Justice william o. douglas led the Supreme Court's modern expansion of the guarantee of equal protection of the laws. As early as 1942, in skinner v. oklahoma, Douglas used the term "invidious discrimination" to differentiate state-imposed inequalities demanding strict judicial scrutiny from other discriminations (particularly economic regulations) that were valid so long as they had a rational basis. The word "invidious," which suggests a tendency to provoke envy or resentment, is an appropriate label for governmental discriminations imposing the stigma of caste, especially racial discriminations. Fittingly, Douglas used the same label in levy v. louisiana (1968) to describe discrimination based on the status of illegitimacy.

In harper v. virginia state board of elections (1966), Douglas termed "invidious" the state's use of a poll tax as a condition on voting. As a wealth discrimination case, Harper fit the dictionary definition of "invidious." In another view, however, Harper required strict scrutiny because the state impaired the fundamental interest in voting. In this perspective, "individious discrimination" broadens into a label for the Court's ultimate conclusion on the issue of an equal protection violation. For Justice Douglas, either use of the term was acceptable.

In more recent racial discrimination decisions, the Court has turned the dictionary meaning of "invidious" upside down, using it to denote not the tendency of a discrimination to provoke ill will, but the malevolent purpose of government officials. In washington v. davis (1976), for example, the Court held that a law's racially selective impact did not demand strict scrutiny, absent a showing of "invidious discriminatory purpose." The language of constitutional doctrine, like the language of diplomacy, stands ready to serve causes both fair and foul.

Kenneth L. Karst
(1986)

Bibliography

Karst, Kenneth L. 1969 Invidious Discrimination: Justice Douglas and the Return of the "Natural-Law-Due-Process Formula." UCLA Law Review 16:716–750.