Category Archives: X-Men

Magneto’s Scheme in the X-Men Movie

This is a question we got a while back from Christopher, who wondered about Magneto’s evil plot in the 2000 X-Men movie.  In the movie, Magneto devises a plan to win respect for mutants by turning the world’s leaders into mutants, starting with a particularly anti-mutant U.S. Senator, which would force them to see things from the mutant perspective.  But what if the plan backfired, and anti-mutant sentiment led to an effort to remove the leaders from office?  In particular Christopher wanted to know about the President.*  There are four ways we can think of for getting rid of the President: two might actually work, one is tenuous for legal reasons, and one is tenuous for practical reasons.

* If you’re wondering, Senator Kelly could have been removed by expulsion by the Senate itself, impeachment, or constitutional amendment (more on those last two later).  The Senate, like the House, has the power to decide whether its members meet the constitutional requirements for election but may not do so in order to discipline its members.  Powell v. McCormack, 395 U.S. 486 (1969).

I. Impeachment

Strictly speaking, impeachment refers to charging an official with misconduct, not the resulting trial or getting kicked out of office.  It’s basically an indictment.  At the federal level, the President can be removed from office on impeachment for and  conviction of treason, bribery, or other high crimes and misdemeanors.  U.S. Const. art. II, § 4.  Getting the ball rolling requires a simple majority in the House, but conviction requires a two-thirds vote in the Senate.  The conviction cannot be reviewed by the federal courts.  Nixon v. United States, 506 U.S. 224 (1993) (NB: this was a case about a federal judge named Nixon, not former President Nixon, who was almost-but-not-quite impeached before he resigned).  Nor can the new President (i.e. the former Vice President) use the pardon power  to reinstate the ex-President.  U.S. Const. art. II, § 2, cl. 1 (impeachment is expressly excluded from the pardon power).

On the one hand, it’s unlikely that being a mutant would qualify as a “high crime or misdemeanor.”  The phrase is misleading to modern ears, and it encompasses more than just criminal acts and includes maladministration and subversion of the Constitution.  But even these broader terms require some kind of overt act or omission; simply existing as a mutant wouldn’t seem to qualify.  On the other hand, no one is perfect, and some trumped-up charge could probably be dug up.  Besides, the impeachment and conviction aren’t reviewable by the courts: once you’re out, you’re out.

The major downside of the impeachment route is that it’s still a trial, and since the Chief Justice of the Supreme Court would preside over the case, it’s unlikely that Congress could make a complete mockery of the proceedings.  The President would have the opportunity to present evidence and call witnesses, which buys a lot of time for building public support against removal.

II. The 25th Amendment

The 25th Amendment addresses the problem of Presidential succession.  This includes not only what to do if the President dies, resigns, or is removed from office (the Vice President takes over) but also what to do if the President is nonfatally disabled (the Vice President takes over as acting President).  This second option can be voluntary (e.g. for a planned surgery during which the President will be incapacitated) or involuntary (e.g. an unplanned incapacitation).  It’s the involuntary option that interests us because it can effectively be used to stage a coup, albeit one that needs considerable Congressional support.

The way the process works is that the Vice President and the majority of the Cabinet transmit a written declaration of the President’s disability to the President pro tempore of the Senate and the Speaker of the House.  This makes the Vice President the acting President.  The President can then challenge this declaration.  Ultimately, Congress decides the issue: if two-thirds of both houses vote that the President is indeed disabled, then the VP remains acting President.

The advantages here are that there’s no need for trumped-up charges, the executive branch can start the process, there’s no intervention by the judicial branch, the VP immediately assumes power, and Congress only has 21 days to decide the issue, so there’s a limit on how much time the President has to gather public support.  The downside is that it requires a majority of the Cabinet, who presumably are fans of the President, and two-thirds of both houses, which is a higher bar than impeachment.  And it’s probably still pretty difficult to sell mutant status as such a disability that the President couldn’t discharge his or her duties, although some mutations come close, particularly dangerous, uncontrolled ones.

III. Adding a Qualification for Office

Now we come to the legally tenuous approach.  Congress could try to force a new qualification for office on the President, but we don’t think it would work without a constitutional amendment.  The Constitution specifically lists the qualifications to be President and doesn’t provide for adding any new ones.  It’s also not one of Congress’s specifically enumerated powers.  The houses of Congress are explicitly empowered to judge the qualifications of their own members, which suggests they are not empowered to do so for the Presidency.  Finally, Powell v. McCormack and U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) suggest that the qualifications to be President, like those for federal legislators, are constitutionally fixed and cannot be altered by Congress or the states (except by amendment).

Besides, the President would assuredly veto the bill, and overriding it would require a two-thirds vote in both houses.  It would probably be easier to go the impeachment route.

IV. Constitutional Amendment

And here we come to the wildly impractical but guaranteed effective nuclear option.  There’s no reason the President couldn’t be removed by amendment, either explicitly (“Amendment 28: John Smith, currently President of the United States, is hereby removed from office.”) or implicitly by barring mutants from holding office, notwithstanding all that stuff about equal protection and due process.

The downside is that it would be completely impractical unless virtually the entire country were rabidly anti-mutant.  The upside is that an amendment could affect all mutant office-holders at once, which the other three methods could not.

V. Conclusion

Magneto’s plan, though criminal and insane, would probably not have backfired.  Removing mutant politicians from office would have been difficult, fairly slow, and politically divisive at best and effectively impossible at worst.  It’s more likely that the mutant politicians, if they refused to resign, would have stuck around at least to the end of their terms.

Superheroes and Flying I: Air Safety and Registration

According to the Federal Aviation Administration, there are approximately 7,000 aircraft in the air over the continental US at any given time. That looks something like this. Congress has claimed sovereignty over U.S. airspace and has given authority to the Administrator of the FAA to “develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace.” 49 U.S.C. § 40103.

So what does this mean for our flying superheroes?

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Healing Factors, Indestructability, and Murder: Factual Impossibility Gets A Workout

Wolverine is one of a number of comic book characters who is extremely difficult to kill. It has been theorized that it would take decapitation followed by immediate removal of his head from the vicinity of his body to effectively kill him. Similarly, though Superman has died, he can survive far, far more punishment than a standard Homo sapiens sapiens.

Which raises the question: if it is impossible for a given action to kill a potential target, does it constitute a crime? And if so, which crime?

I. Mens Rea

The question has to do with the way crimes are defined at law. Crimes are made up of elements, all of which must be present for the crime to have been committed and proven by the prosecution for a defendant to be found guilty. One of the elements of most crimes is an appropriate “mens rea,” i.e. an appropriately guilty mind.* The great American jurist Oliver Wendell Holmes, Jr. is said to have remarked, “Even a dog knows the difference between being tripped over and being kicked.” In short, the law recognizes a distinction between things which are done on purpose and things which are done by accident, and intentional acts are generally treated more seriously.

The Model Penal Code sets up five types of mens rea: purposeful, knowing, reckless, negligent, and strict liability. To be convicted of murder in a state which has adopted some version of the MPC (i.e. virtually any state), one must kill another either purposefully, knowingly, or recklessly. That is to say, one needs to have either 1) actively intended for the person to die, 2) known that a particular course of action was practically certain to lead to a person’s death and engaging in said course of action anyway, or 3) known that there was a substantial risk that a particular course of action will lead to a person’s death and engaging in said course of action anyway. Killing another negligently, i.e. engaging in a course of action which one should have known was likely to lead in the death of another, is only good enough for manslaughter, and killing someone completely innocently isn’t a crime at all. I mean, good luck convincing a jury of that one, but if you do, you walk.

So far we’re basically only talking first year Criminal Law. Where things get interesting is when the intended victim is someone like Wolverine or Superman. Say, for example, Pyro lights Wolverine on fire. Wolverine is going to be pissed, and it’s going to hurt like hell, but he’s going to be okay in a minute. (Superman might not even notice, depending on when and in what continuity said ignition occurs.) If Pyro had targeted a non-mutant (or most mutants other than Wolverine), said target is going to have a pretty unpleasant final few minutes. Pyro is clearly guilty of assault, as he deliberately inflicted harm on Wolverine (though Wolverine’s civil damages are going to be nominal), but not of murder, as Wolverine is still around. The question is whether he can be convicted of attempted murder.

Attempted murder requires that you act intending to kill someone but somehow fail to do it. Knowing or reckless activity will not suffice, because the legal system is only willing to punish inchoate offenses of the most serious sort. On first blush, it would seem that yes, Pyro would be guilty of attempted murder, as he tried to kill Wolverine and failed. But what if this isn’t Pyro’s first rodeo and he knows damn well that burning Wolverine is just going to make him mad? That Pyro can’t actually kill him, or, at least, that lighting him on fire isn’t going to do it? Now the picture gets a little murkier, as it would seem that the requisite mens rea is missing. Again, he’s still obviously guilty of assault, as he did intend to harm Wolverine, but it seems at least questionable as to whether doing something that you want to kill someone but that you know won’t work does not constitute the mental state necessary to ground attempted murder.

II. Factual impossibility with a twist

There is another question here: does the fact Pyro can’t kill Wolverine this way make a difference? In other words, does factual impossibility operate as a defense here? In general, factual impossibility is not a defense to any crime, but these aren’t normal facts.

Consider an analogy: A man is trying to kill his neighbor. So he sneaks into his neighbor’s home after midnight, fires three rounds into the bed, and leaves. It turns out that the neighbor was at his girlfriend’s house and the bed was empty. Clearly, we have no murder charge. But do we have an attempted murder charge? If the man fired the shots believing the neighbor to be in his bed, then the fact that he was not does not change the fact that the man took an action he believed was going to kill his neighbor. This constitutes an intentional attempt to kill another, which is all you need for an attempted murder charge. The intended victim being in actual danger is not, in fact, an element of attempted murder. So whether the neighbor survived because the man was a bad shot and only winged him, or because the neighbor was in a difference house entirely is irrelevant: the man’s guilty mind and actions are enough to convict him.

But if the man saw that his neighbor was gone but shot the bed out of frustration, wishing that he was there so that he would die, this is another matter entirely. Here, the most he can be convicted of is probably some combination of unlawful discharge of a weapon, destruction of property, and burglary. But because he knew that the man would not die, he lacks a guilty mind with respect to attempted murder.

So it would seem that if Pyro attacks Wolverine and is surprised that he survives, an attempted murder charge will stick: the fact that the attack couldn’t have killed him is irrelevant if Pyro believed that it would. But if Pyro attacks Wolverine, intending to kill him but knowing that the attack will not succeed, factual impossibility may actually serve to defeat a charge of attempted murder. Pyro certainly had the intent to kill, but did not commit an act which produced a substantial risk of death and knew this to be the case at the time.

This would seem to be in keeping with the classic case on the subject, State v. Mitchell, 71 S.W. 175 (Mo. 1904), which held “it is no defense that the defendant could not succeed in reaching his goal because of circumstances unknown to him.” The implication is that it would be a defense if the defendant knew he could not succeed. An excellent discussion of intent in criminal law can be found in People v. Joseph, 172 N.Y.S.2d 463 (County Ct. of N.Y., Kings County 1958) (with apologies to those without access to legal research tools; that case is not available freely online).

III. Serious bodily injury

But what about a slightly different case: what if the person truly only intended to hurt Wolverine, not kill him? And what if, knowing that Wolverine is one tough bastard, they used force which would have completely obliterated a normal person? Again, no attempted murder charge, but intent to inflict “serious bodily injury” (defined in federal law at 18 U.S.C. 1365(h)(3)) is something the law recognizes. If we were talking about a normal person, intent to inflict serious bodily injury is good enough to ground a murder charge if the victim does die, because recklessness, i.e. disregard for known risk, will work for murder. So if Pyro lights someone on fire and they die, it doesn’t matter whether or not he actually intended them to die, because he would have completely disregarded an obvious risk that they might. The legal system is pretty comfortable imputing intent to defendants who display extreme disregard for human life.

But intent to inflict “extreme physical pain” coupled with the knowledge that death will not result will not seem to ground an attempted murder charge, which is a specific intent offense. But even if the intent was only to inflict “extreme physical pain,” intent to do that coupled with the knowledge that it will not result in death will still turn the crime from simple assault, which is normally a misdemeanor, into aggravated assault, a felony. This would be true regardless of the intended victim: doing something which is going to cause a lot of pain is a serious crime. Wolverine being Wolverine does, however, mean that you can dish out a lot more pain and still only get stuck with an aggravated assault charge. Which kind of sucks for Wolverine, but hey, nobody said having a mutant healing factor was an unmitigated good. Most people I know would probably be willing to give up potential attempted murder charges against them in exchange for, you know, being invincible.

Superman is an interesting case here. Lighting him on fire may or may not even be possible, but assuming that it even works, it’s an open question as to whether or not he’ll notice. Probably depends on who’s writing the story in question. Attempted aggravated assault is, in fact, a crime, but that one’s going to be difficult to actually get to. If Pyro has run into Superman before–yay, crossovers!–then he knows that Superman isn’t going to die, so we’ve got no attempted murder charge. But he might not know whether Superman is going to feel it. If he knows, then we’ve probably just got a simple assault: Pyro was attempting to do something to Superman, and he did something, but he knew that it was futile. But if this was their first meeting, there doesn’t seem to be any room to argue that Pyro was only trying to burn him a bit, not kill him, Pyro having reason to believe that fire is really, really bad for people. Factual impossibility being no help to defendants not aware of the impossibility, it would seem that we have an attempted murder charge.

IV. Conclusion

Thus, whether an attempted murder charge will stick when the victim is basically indestructible essentially depends on whether the attacker knew beforehand that the target would survive. If they did know, then it’s going to be very difficult if not impossible to convict them of attempted murder. But if they didn’t, then an attempted murder charge should stick, because factual impossibility is no defense for the unwitting defendant.

*There are a few exceptions. Statutory rape, for example, does not require one to know that the person with whom one is having sex is underage. It is a “strict liability” offense, i.e. one for which the commission automatically brings liability, regardless of one’s state of mind. Speeding is similar: one need not have intended to speed to be guilty of doing so, even though one does need to be on notice as to what the speed limit actually is. But as intent is such a basic part of almost every ethical system, strict liability is reserved for offenses society deems to be either so serious as to be worth punishing at any cost, or so minor that the efficiency gain of disregarding intent is worth including some involuntary infractions.

Hearsay and Professor X

[Be sure to read the update to this post in Law and the Multiverse Retcon #2!]

This post was inspired by a question on MetaFilter Projects: “Can you write one on the admissibility of evidence obtained through Professor X’s mind-reading abilities? I’m sure it would implicate Fifth amendment issues as well.”  We can analyze this question under the Federal Rules of Evidence.  Be warned: this is a long one.  The short answer: it’s probably admissible, though hearsay is an issue, and the Fifth Amendment is not a problem.

I. Relevance

First we must ask “is the evidence relevant?”  FRE 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  This is a very low bar, and FRE 402 provides that relevant evidence is admissible by default.  But the question must still be asked “is a telepath’s claim about the contents of another person’s head relevant?”

I think the answer is yes.  The telepath could be lying, but that’s true of any witness.  The telepath’s credibility must be judged by the fact-finder.

The telepath could be a fraud, but the judge could require that the telepath’s powers be proved prior to offering the substantive evidence.  FRE 901(a) provides “the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”  By way of example FRE 901(b)(9) gives “Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.”  The accuracy and reliability of a telepath’s power fits that example.

II. Exclusion under FRE 403

Relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”  Of these, unfair prejudice is the greatest risk here.

The notes on FRE 403 state that “‘unfair prejudice’ within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.”  A fact-finder may unfairly prejudice a party by giving undue weight to the testimony of a telepath, possibly completely ignoring the testimony of the original witness.  However, “in reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction.”  It may suffice for the judge to remind the jury that it should also consider the testimony of the original witness.

III. Personal Knowledge

FRE 602 requires that a witness have personal knowledge of the matter being testified about.  This means that a fine but important distinction should be made.  The telepath would not be testifying as to the actual events the original witness had personal knowledge of.  Instead, a telepath would testify about his or her personal knowledge of what he or she read in the original witness’s mind.  It’s the difference between Professor X saying “John Doe shot JR” and “The witness remembers seeing John Doe shoot JR.”  Everything the telepath testifies about is ultimately coming through the lens of the original witness’s senses, understanding, and memory.

IV. Hearsay

Now we come to one of the biggies.  The general rule under FRE 801 is that “‘Hearsay’ is [an oral or written assertion or nonverbal conduct of a person, if it is intended by the person as an assertion], other than one made by [the person who made the statement] while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

A complicated definition, to be sure, but maybe we don’t have to address it.  A person’s thoughts are not an oral or written assertion, nor are they a nonverbal action intended as an assertion.  Of course, it is likely that in a universe with psychics and telepaths the Federal Rules of Evidence would be amended to include thoughts.  Given that, let’s complete the hearsay analysis.

Assuming thoughts fit the first part of the definition, then we know the second part fits as well, since the telepath is not the person who made the statement.  The final part is whether the telepath’s testimony is offered to prove the matter asserted.  For example, when Professor X says “The witness remembers that John Doe shot JR,” is that being offered to prove that John Doe did, in fact, shoot JR?  If it is, then it is hearsay and inadmissible unless it falls under one of the exemptions or exceptions (which are beyond the scope of this post).  I will just say that there are many such exemptions and exceptions and that the hearsay rule would not exclude much of any importance.

V. The Fifth Amendment

Amongst other things, the Fifth Amendment protects a person’s right not to “be compelled in any criminal case to be a witness against himself.”  This right has some important boundaries, however.  The way in which many people think of the Fifth Amendment, “pleading the Fifth,” only extends to testimony by the witness at a legal proceeding.  A telepath’s testimony regarding the thoughts of another is not the same as the person’s own testimony.  It is the difference between “I shot JR” and “The defendant remembers shooting JR.”  So that aspect of the Fifth Amendment would not apply.

However, there is another aspect of the Fifth Amendment, which is the general right to remain silent. That right excludes confessions obtained without first informing a person of his or her right to remain silent during custodial interrogation (i.e. when the person is not free to leave).  However, the rule only applies to statements.  Other kinds of incriminating information may be extracted, such as fingerprints, mugshots, and DNA samples.  A telepath’s reading of a person’s thoughts would arguably fall under the latter, non-statement category.

VI. Conclusion

A telepath or psychic such as Professor X could read a criminal suspect or defendant’s mind, and the information thus learned would likely be admissible evidence and would not implicate a person’s Fifth Amendment rights.  During a regular trial the hearsay rule might exclude some such testimony, but much of it would fall under an exemption or exception.

Mutants and Anti-Discrimination Laws, Part Two

In the previous post we considered whether discrimination against mutants was constitutional under the Equal Protection Clause of the 14th Amendment and concluded that it probably was.  In this post we take a look at substantive due process and whether mutants are a “discrete and insular minority.”

Substantive due process rights are derived from the Due Process Clause of the 14th Amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law.”  While we ordinarily think of due process as being about, well, procedural rights (e.g. the right to a hearing), substantive due process protects rights held to be fundamental to our scheme of ordered liberty or deeply rooted in American history and traditions. McDonald v. City of Chicago, 130 S. Ct. 3020, 3036 (2010).  An example of such rights that is relevant here are “the rights of ‘discrete and insular minorities’ — groups that may face systematic barriers in the political system.”  130 S. Ct. at 3101. When a law implicates such a right, the courts apply a strict scrutiny standard.

But the courts do not recognize new substantive due process rights lightly.  “Recognizing a new liberty right is a momentous step. It takes that right, to a considerable extent, outside the arena of public debate and legislative action.”  Id.  However, “[s]ometimes that momentous step must be taken; some fundamental aspects of personhood, dignity, and the like do not vary from State to State, and demand a baseline level of protection. But sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society provides an important tool for guiding judicial discretion.” Id.

So the questions are raised: are mutants a discrete and insular minority?  do they face systematic barriers in the political system?  do anti-mutant laws threaten fundamental aspects of personhood or dignity that demand a baseline level of protection?  I think the answer to all of these questions is yes.  Although anti-mutant discrimination is a relatively new phenomenon, it has existed essentially as long as mutants have.  Such discrimination is pervasive, sometimes violent, and often backed by the authority of the state.  In at least one case it has even lead to the wholesale enslavement of mutants.  The discrimination goes to the mutants’ very humanity, and there can hardly be a more fundamental aspect of personhood or dignity than that.

So while the argument under the Equal Protection Clause may be somewhat weak, I think there may be a stronger argument under the Due Process Clause.  Did any X-Men series ever address a court challenge to anti-mutant laws?  For a couple hundred thousand dollars in legal fees the X-Men could have saved everyone a lot of trouble.

Mutants and Anti-Discrimination Laws, Part One

Discrimination against superheroes, particularly mutants, is a perennial problem in the Marvel universe, but there’s an argument to be made that the existing constitutional anti-discrimination framework would protect mutants.  First we consider the Equal Protection Clause of the 14th Amendment.  In a follow-up post we’ll discuss substantive due process.

The Equal Protection Clause of the 14th Amendment states that “No State shall…deny to any person within its jurisdiction the equal protection of the laws.”  The Supreme Court has held that “[t]he general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest….The general rule gives way, however, when a statute classifies by race, alienage, or national origin. These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy — a view that those in the burdened class are not as worthy or deserving as others. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest.” Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985).

The Court has also held that other classifications (sex and legitimacy of birth) are subject to a heightened standard called intermediate scrutiny.  “[W]hat differentiates sex from such nonsuspect statutes as intelligence or physical disability…is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. Rather than resting on meaningful considerations, statutes distributing benefits and burdens between the sexes in different ways very likely reflect outmoded notions of the relative capabilities of men and women….Because illegitimacy is beyond the individual’s control and bears no relation to the individual’s ability to participate in and contribute to society, official discriminations resting on that characteristic are also subject to somewhat heightened review.”  473 U.S. at 440-41 (internal citations and quotations omitted).

“So far, so good,” you may be thinking.  After all, discrimination on the basis of mutant status is often based on “prejudice and antipathy” and unlikely to be rectified by legislative means because mutants are such a small minority.  Or, at the very least, mutant status is “beyond the individual’s control and bears no relation to the individual’s ability to participate in and contribute to society,” at least inasmuch as mutants are generally equal to or superior to typical humans in every way.

Alas it is not that easy.  First, unlike the problems of discrimination on the basis of race, citizenship, national origin, sex, and legitimacy, discrimination on the basis of mutation is a relatively new phenomenon, only a few decades old.  A court may be unwilling to conclude that it is a problem unlikely to be rectified by legislative means without giving the issue more time to develop.  Second, from a legal perspective mutation would indeed bear a relation to an individual’s ability to participate in and contribute to society.  For example, one could easily imagine jobs that particular mutants could do much better than a typical human.   However, let’s continue with the Cleburne case for an example of the Supreme Court declining heightened protection to a class and see if mutation fits the mold.

The Cleburne case was about discrimination against people with mental disabilities (basically the City of Cleburne had an ordinance that required a special zoning permit for the operation of a group home for the mentally disabled).  The Fifth Circuit held that mental disability was a quasi-suspect-classification due at least some heightened scrutiny, but the Supreme Court disagreed.  First, it held that mental disability was a highly variable condition requiring carefully tailored solutions not befitting the judiciary.  Id. at 442. Second, it held that cities and states were addressing mental disabilities in a way that did not demonstrate antipathy or prejudice.  Id. at 443. Third, the existence of positive legislation indicated that the mentally disabled were not politically powerless. Id. at 445. Fourth, if the Court recognized mental disability as a suspect class it would have to do the same for “a variety of other groups who have perhaps immutable disabilities setting them off from others, who cannot themselves mandate the desired legislative responses, and who can claim some degree of prejudice from at least part of the public at large[, such as] the aging, the disabled, the mentally ill, and the infirm. We are reluctant to set out on that course, and we decline to do so.” Id. at 445-46.

So we can see that while some of this decision cuts in favor of mutants (the second and third points are lacking in the case of mutants), the first and fourth points cut against them.  Mutation is indeed a highly variable condition, and arguably it is “a difficult and often a technical matter, very much a task for legislators guided by qualified professionals and not by the perhaps ill-informed opinions of the judiciary.”  Id. at 443.  And making mutation a suspect class would open a door the Supreme Court explicitly declined to open in Cleburne.  Given the Court’s current reluctance to embrace homosexuality as a suspect class, it’s questionable whether it would do so for mutants.  In the next post we’ll consider whether substantive due process offers a better argument.