Owen Fiss, equality theory, and judicial role

Abstract

This essay uses Owen Fiss' treatment of equality doctrine in "Group and the Equal Protection Clause" to demonstrate the influence of judicial part conceptions on equality jurisprudence. Fiss' conception of the judiciary's part in elaborating and enforcing public norms profoundly shapes his articulation of the anti-subordination principle. More specifically, Fiss gazes to the federal judiciary unilaterally to declare public law realitys and to impose those veritys on noncompliant bureaucrats. This static, almost imperial part places great pressure on the judiciary to adopt unitary equality norms that can be implemented, at least in theory, from one side top-down imposition. Fiss' commitment to