It's another thing to characterize those with whom one disagrees as liars or uninformed.
Tom Foley, the blogger sometimes known as Illusory Tenant, is someone that I like and who often has interesting things to say. Most recently he accused Charlie Sykes of cluelessness ("riding the disinformation choo choo") and dishonesty ("why do these people lie?) with respect to a case called Ferdon v. Patients Compensation Panel and its announcement of a standard called rational basis scrutiny "with teeth" that is not "toothless" and that "has bite." Ferdon struck down limits on noneconomic damages in medical malpractice cases. Some of my criticism of the case can be found here.
This is the Sykes statement with which Tom takes issue. Referring to the Ferdon decision, Charlie wrote:
[Wisconsin Supreme Court Chief Justice Shirley Abrahamson] changed the court's standard for reviewing legislation to something called "rational basis with teeth" which essentially allows the justices to second-guess laws they don’t like ...
Not true, says IT, rational basis scrutiny has never been toothless. There is nothing to see here. Sykes statement is, he says, nonsense.
Actually, it's spot on.
Let me put this as gently as I can. The point, as Tom surely knows, is not whether anyone else has ever used dental imagery to describe equal protection analysis, but what the Court actually did in Ferdon. If Tom is suggesting that it was not an extraordinary decision that is wholly irreconcilable with the way in which courts usually treat equal protection challenges to distinctions drawn on the basis of a nonsuspect class and not involving the exercise of a fundamental right (and both of those things are legal terms of art, so lay commenters ought to watch where they tread), then he is thoroughly and flagrantly wrong.
Now, we can argue about whether the Ferdon approach is a good idea or a bad idea. We can argue about whether it adopts a standard that leaves judges with no coherent guidance as how to apply Article I, section 1 of the Wisconsin Constitution (although I don't think we can argue long about that). We can even argue - as some have - about whether the courts' traditional formulation of three tier scrutiny in equal protection cases adequately explains what they do.
But the notion that the legislature did not have a "rational basis" for enacting the malpractice caps that it did - as that term is traditionally understood and applied -is nonsense. One can only conclude the caps were "irrational" by engaging in a close analysis of and making a series of contestable empirical and policy judgments about whether these caps serve their intended purpose. This is why the Ferdon decision is so long. It doesn't spend page after page discussing legal standards. It spends page after page discussing the intricacies of malpractice caps. As Judge Diane Sykes put, if a law were truly irrational, it would would be easier to explain why.
But this type of analysis is precisely what courts do not do when applying rational basis scrutiny. They do not substitute their own judgment about what constitutes good public policy for that of the legislature.