Aziz Z. Huq
90 Geo. Wash. L. Rev. 1487
Starting from Justice Ginsburg’s 2017 opinion in Sessions v. Morales- Santana, this Article explores the choice between “leveling up” and “leveling down” as a judicial response to an unlawful difference in the legal or regulatory treatment of two distinct groups. That problem can arise in the Equal Protection, Free Speech, Free Exercise, and dormant Commerce Clause contexts. But it has come to the fore in the equality and speech contexts of late. My analysis starts by developing the idea of a leveling-down disposition in the context of a constitutional equality claim. After exploring analogies in other areas of constitutional law, I then turn to two alternative ways of analyzing and evaluating the leveling-down disposition as a remedy for an inequality— one through the lens of Article III standing doctrine, and the other by reference to severability doctrine—to suggest that both are inadequate. This Article offers two ways in which a leveling-down disposition can be derived from a constitutional theory of equality. While hardly unproblematic, leveling down has greater merit than previously recognized. I conclude by flagging an “exit” from the seemingly dichotomous choice between leveling up and leveling down.
