Fordham University School of Law
"There is only one Equal Protection Clause. It requires every State to govern impartially. It does not direct the courts to apply one standard of review in some cases and a different standard in other cases."1 These words open Justice John Paul Stevens's famous concurring opinion in Craig v. Boren.2 That was the first case in which the U.S. Supreme Court applied "intermediate" scrutiny to gender-based classifications and thus carved out a third tier of equal protection analysis between strict scrutiny and deferential rational basis scrutiny. Craig was decided in 1976, at the beginning of Justice Stevens's long and distinguished tenure on the Supreme Court. With these words, he served notice that he was an independent thinker and that he was to be, in Professor Kathleen Sullivan's apt formulation, a "justice of standards" as distinguished from a "justice of rules."
James E. Fleming,
'There Is Only One Equal Protection Clause': An Appreciation of Justice Stevens's Equal Protection Jurisprudence
Fordham Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2839