The paper proceeds by describing the issues at play in Moreno and Murry before delving into the process by which they were decided. Reference to the Justices’ internal communications, along with Justice Brennan’s notes, demonstrates a set of related concerns about the two cases. Justice Douglas was originally slated to author Moreno and Brennan took over only when Douglas’s chosen approach proved more than the rest of the Court would accept. But Brennan’s first approach to the case—to strike the statute on “morality” grounds—did not fit the case as argued, and only then did he turn to rationality as the basis of the decision. After discussing that shift in justification for Moreno itself, the paper considers the implications of Moreno, and process of its decision, for the Court’s rational basis “plus” jurisprudence.

Thomas B. Nachbar, Rational Basis “Plus”, 32 Constitutional Commentary 449–477 (2017).