fbpx

Building the Tiers of Judicial Review

In American constitutional law, it is common to speak of “levels of scrutiny” or “tiers of judicial review.” The terms refer to the degree to which the courts require government justification for a challenged law or action. For example, the Supreme Court requires very little justification for government discrimination on the basis of income (e.g., our progressive income tax), whereas it requires an extremely persuasive justification for government discrimination on the basis of race. Similarly, the Court requires little justification for government regulation of drugs, but requires compelling justification for the regulation of speech.

Applying different levels of scrutiny or tiers of review obviously can make a great deal of difference to the outcome of the case. So much so, that the government can generally expect to win in cases involving the lowest tier of judicial scrutiny (“rational basis review”), and to lose in cases where they face the highest tier (“strict scrutiny,” sometimes referred to as “strict in theory, fatal in fact”). Currently, the Court applies the lowest tier of judicial scrutiny in cases involving challenges to economic legislation and applies the highest tier in cases involving judicially identified “fundamental rights.”

Tiered scrutiny has long been controversial. The theory allows the Court to distinguish between strongly and weakly protected rights, and between protected and unprotected classes. These categories are a matter of judicial construction—nothing in the text demands the application of tiers. Not surprisingly, some academics insist that tiered scrutiny is nothing more than a theoretical smoke screen for bare judicial preference. Others claim that applying “lowest tier” scrutiny amounts to an abdication of the Court’s duty to protect individual liberty in all its forms.

In fact, even some members of the Supreme Court have chaffed against having to fit a case into a formal “tier” with its own special “test” (rational basis review, intermediate scrutiny, strict scrutiny, etc). Former Justice Thurgood Marshall, for example, wanted to replace the Court’s use of tiers with a sliding scale—a balancing approach that could be adjusted on a case by case basis. On the current Supreme Court, Justice Anthony Kennedy is no respecter of tiers, and instead applies his own idiosyncratic version of a reasonableness test (see Romer v. Evans, Lawrence v. Texas). Kennedy’s approach currently remains rather unorthodox—most members continue to speak in terms of different levels of scrutiny for different kinds of rights. But the Court’s upcoming decision in the same sex marriage case, Obergefell v. Hodges, may find the Court moving in Kennedy’s direction—away from formal tiers of review and towards a more open-ended form of judicially maintained “reasonableness.”

In thinking about whether this is a good thing, I believe it bears remembering when and why tiers of judicial scrutiny came into being in the first place. The Supreme Court constructed these tiers not to constrain the protection of individual rights, but to guard against the unjustified interference with the political process. Removing the tiers removes the guard.

Tiered scrutiny first emerged in the late 1930s as part of the New Deal Court’s extraordinary restructuring of constitutional jurisprudence. Prior to 1937, there was no such thing as levels of review. The pre-New Deal Court (sometimes called the “Lochner” Court in reference to the infamous 1905 decision) scrutinized all democratically enacted laws for “reasonableness” and invalidated those laws that the Court concluded were insufficiently justified in light of the justices’ theory of substantive liberty.

The Lochner Court’s invocation of liberty of contract as a substantive component of “liberty,” of course, led to a high-stakes stand-off between the Supreme Court and the New Deal Democrats. In response to the Supreme Court’s striking down critical aspects of the Democrat’s legislative agenda, FDR proposed packing the Court and Congress considered amending the Constitution to allow congressional override of judicial opinions. Both proposals were driven by a desire to “democratize” the Court and make it more responsive to people. The Supreme Court, many believed, had been acting in an unjustifiably “counter-majoritarian” manner: “Liberty of contract” was neither in the text of the Constitution nor in the original understanding of terms like “due process of law.” The Court’s stand-off with the political branches appeared to be a fight between the personal preferences of an unelected court and the majoritarian will of a country in economic distress.  Given this common perception, no wonder Congress considered demoting the Court.

In 1937, however, a majority of the Supreme Court “blinked.” The Court stopped enforcing liberty of contract as a substantive fundamental liberty and began to defer to the economic choices of political majorities.  Such a dramatic reversal called for an explanation from the Court. There were two plausible ways to explain the sudden shift: One, the Court could claim that it is always wrong for the Court to second guess the people’s representatives. This approach would signal the Court’s withdrawal from future enforcement of constitutional liberties. A second option, however, would have the Court explain why the Lochner Court had been wrong to require specific justification for abridging the liberty of contract.

In the 1938 case, United States v. Carolene Products, Justice Harlan Stone tentatively embraced the latter explanation: Heightened scrutiny in favor of liberty of contract had been the problem. From now on, the Court would defer to the political process on matters involving unenumerated economic rights. However, in what became the most famous footnote in Supreme Court history (“footnote four”), Justice Stone suggested that heightened judicial scrutiny might still be constitutionally appropriate in three categories of cases: Those involving textually enumerated rights (thus distinguishing the unenumerated right to contract), those involving the political process, and those involving groups historically denied equal access to the political process (“discreet and insular minorities”). Stone’s footnote four is not long and, given its central role in the later development of tiered judicial review, it’s worth reading again:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

Here, in a footnote, is Justice Stone’s explanation for, and theory of, the New Deal Revolution. The Lochner Court had been wrong to strike down laws based on an economic right found nowhere in the text of the Constitution (it was not a “specific prohibition”).  On such matters, unless something has gone wrong with the political process itself, the Court should defer. On the other hand, when it came to matters involving “specific prohibitions” (textually enumerated rights), the Court retained the constitutional authority and duty to closely scrutinize the government’s justification for abridging a right expressly embraced by the people themselves.

By distinguishing liberty of contract from judicially enforceable “fundamental” rights, Carolene Products and Footnote Four gave birth to “tiered” scrutiny. The Court divided matters left as a matter of democratic right to the people’s representatives from those matters placed by the people themselves beyond the reach of ordinary politics. The theory of footnote four explains why the Supreme Court’s abandoned liberty of contract (a judicially constructed non-textual right) and why it continued to engage in heightened review in cases involving “specific” constitutional prohibitions.

By giving way to political regulation of economic matters, the Supreme Court defused the political momentum to neuter the American Supreme Court. This is why the New Deal Court’s reversal is sometimes called “the switch in time that saved nine.” But this was not a total retreat. By establishing different levels of judicial engagement, the Court justified its continued, if limited, judicial scrutiny of the political process. The Supreme Court preserved itself as a legitimate organ of democratic constitutional government through an act of partial self-restraint: tiered review.

It is this aspect of self-constraint that is often forgotten in discussions and criticisms of tiered judicial scrutiny. The tiers do not exist to deny rights. They exist to mark those boundaries beyond which the court should defer to the people’s representatives. Removing the tiers does not expand individual freedom, it expands judicial power. These are not the same thing.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on June 24, 2015 at 10:21:39 am

This is an excellent piece. It's certainly accurate to say that the New Deal Court undertook a legitimizing project-- that it viewed the Lochner era as the product of a Court in the grips of a tortured, reactionary construction of the Constitution, and saw it as its duty to preserve an appropriate measure of judicial engagement without thwarting the proper operation of the democratic process (as it believed that the Lochner Court had done). But that raises the question-- was it right?

For my part, I regard the development of tiered scrutiny as an ultimately unhealthy development predicated upon a failure to grasp the a conception of liberty that the Constitution rests upon and which the Lochner Court understood and applied (albeit imperfectly). According to that conception of liberty, any interference by the government with the exercise of one's natural rights -- from the right to speak to the right to pray to the right to earn an honest living-- must be justified with reference to a rational, public-oriented end. Some rights aren't more equal than others.

read full comment
Image of Evan Bernick
Evan Bernick
on June 24, 2015 at 13:15:03 pm

I agree largely with Evan Bernick who posted earlier: while what the Court decided in Carolene Products may have been an institution saving maneuver, it requires strenuous strains of logic to say 1) stare decisis should be invoked today to enshrine tiered scrutiny as "reasonable" in the practice of constitutional law and 2) whether making that judgment in the first place constitutes "right reason," and we should respect it as a proper exercise of jurisprudence that commands our assent in all places in all times, not just in a situation where the Court is under the duress of political branches seeking to alter the rules of our political order for nothing but a power grab.

The best defense of footnote four calls to mind the logic of Jefferson's comments, "A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.” In order to preserve the institution's independence, the Court had to kowtow to the demands of another branch. However even Jefferson's logic presumes ***temporary*** actions of the executive to preserve the ***nation***, not decades long presumptions by the Court of tiered scrutiny being the best method by which to interpret cases. In short, we are seeing in footnote four an awful response to a violation of what Hamilton noted in Federalist 78 as the basic function of the three branches. "He ascribed "FORCE" to the executive, "WILL" to the legislature, and the more circumspect "JUDGMENT" to the judiciary," to quote David Forte.

What we ought to be most disturbed by is not that the Court was acting in this way, but rather why they were acting in this way. It is a Court that then and still today treats the presumption of liberty as second class, and rather as first class a technocratic legal elite's judgment of what certain priorities are. Our first principles are subordinate to the passing fancies of our legal elite. Our Founders weep.

read full comment
Image of Garrett Snedeker
Garrett Snedeker
on June 24, 2015 at 17:26:13 pm

Great piece, Kurt. You’ve provided one of the most concise and accessible summaries of this complex but fascinating history that I’ve encountered yet. It's an intriguing argument, and I wanted to flag two issues on which I hope we can engage here, via email, or in some other medium.

The first issue is simply to note that it is not only “economic legislation” that receives the lowest form of judicial scrutiny. On the contrary, since “fundamental” status is the exception and not the rule, it turns out that most rights receive only rational basis review, including many non-economic rights. This includes decisions about what things we might wish to put into our bodies (raw milk, foie gras, alcohol, marijuana, experimental cancer-fighting drugs, etc.), living arrangements (e.g., whether we can room with people to whom we are not related), hobbies (including snowboarding, hunting, and competing in mixed martial arts tournaments – all actual cases, of course). The list goes on and on. In deciding whether to embrace or reject radically tiered scrutiny, I think it’s important for people to understand that it’s not just “liberty of contract” at stake or even economic activity more generally -- instead, people should realize that just about everything they might want to do on a given day, from the trivial to the profound, is considered nonfundamental by the Supreme Court and therefore not entitled to any meaningful judicial protection.

That brings us to the second issue, which is just how far the Supreme Court has retreated (or should retreat) from the “reasonableness” review of the Lochner era. It seems to me there are two possibilities, and it’s not clear to me which one you believe the Court should embrace. Possibility one is the complete, forthright withdrawal of judicial review from various categories of rights. The Court would say, in essence, “There is simply no constitutional right to earn a living, run a business, or enter into contracts, and therefore there will be no judicial review of laws interfering with those activities -- period, full stop.” Possibility two, which is the one I believe the Supreme Court has endorsed, is to say, “Yes, there is some constitutional protection for nonfundamental rights – both economic and noneconomic – but we will accept virtually any justification, even false ones, as long as we don't look too ridiculous.” As a result, “protecting” people from the demonstrably fictitious specter of margarine, unlicensed ice-cube manufacturers, or eyeball-wrecking opticians is in; but “protecting” residents of a group home for mentally retarded adults from the equally fictitious danger of drowning in a 500-year flood or being attacked by rowdy middle-schoolers is out.

It seems to me that it matters a great deal whether we are saying that: (a) some rights (or "liberty interests," if you prefer that term) receive no judicial protection whatsoever because they are not specifically enumerated in the text of the Constitution (sorry, Carrie Buck); or (b) it is legitimate for courts to acknowledge and protect unenumerated rights, but they should do so in a way that provides meaningful judicial review to a small handful of specially favored unenumerated rights (guiding the upbringing of one’s children, for example) and the charade of Williamson v. Lee Optical-style rational basis review to the rest.

Again, great post, and I hope we can continue this discussion.

read full comment
Image of Clark Neily
Clark Neily
on June 24, 2015 at 17:43:29 pm

Great piece, Kurt. You’ve provided one of the most concise and accessible summaries of this complex but fascinating history that I’ve encountered yet. I wanted to flag two issues on which I hope we can engage, either here, via email, or some other medium.

The first issue is simply to note that it is not only “economic legislation” that receives the lowest form of judicial scrutiny. On the contrary, since “fundamental” status is the exception and not the rule, it turns out that most rights receive only rational basis review, including many non-economic rights. This includes decisions about what things we might wish to put into our bodies (raw milk, foie gras, alcohol, marijuana, experimental cancer-fighting drugs, etc.), living arrangements (e.g., whether we can room with people to whom we are not related), hobbies (including snowboarding, hunting, and competing in mixed martial arts tournaments – all actual cases, of course). The list goes on and on. In deciding whether to embrace or reject tiered scrutiny, I think it’s important for people to understand that it’s not just “liberty of contract” at stake or even economic activity more generally -- instead, people should realize that most everything they might want to do on a given day, from the trivial to the profound, is considered nonfundamental by the Supreme Court and therefore not entitled to any meaningful judicial protection.

That brings us to the second issue, which is just how far the Supreme Court has retreated (or should retreat) from the “reasonableness” review of the Lochner era. It seems to me there are two possibilities, and it’s not clear to me which one you believe the Court should embrace. Possibility one is a complete, forthright withdrawal of judicial review from various categories of rights. The Supreme Court would say something like, “There is simply no constitutional right to earn a living, run a business, or enter into contracts, and therefore there will be no judicial review of laws interfering with those activities—period, full stop.” Possibility two, which is the one I believe the Supreme Court has endorsed, is to say, “Yes, there is some constitutional protection for nonfundamental rights – both economic and noneconomic – but we will accept virtually any justification, even patently false ones, as long as we don’t look (too) ridiculous.” As a result, “protecting” people from the entirely fictitious specter of margarine, rogue ice-cube makers, or eyeball-wrecking opticians is in; but “protecting” residents of a group home for mentally retarded adults from the equally fictitious danger of drowning in a 500-year flood or being attacked by rowdy middle-schoolers is out.

It seems to me that it matters a great deal whether we are saying that: (a) some rights receive no judicial protection whatsoever because they are not specifically enumerated in the Constitution (sorry, Carrie Buck); or (b) it is legitimate for courts to acknowledge and protect unenumerated rights, but they should do so in a way that provides meaningful judicial review to a small handful of specially favored unenumerated rights (guiding the upbringing of one’s children, for example) and the charade of Williamson v. Lee Optical-style rational basis review to the rest.

Again, great post, and I hope we can continue this discussion.

read full comment
Image of Clark Neily
Clark Neily
on June 24, 2015 at 19:09:08 pm

Evan & Garrett,

Thanks to both of you for the kind comments and for taking the time to engage the essay. I think both of you are right to question whether Carolene Products (footnotes and all) reflects a persuasive theory of judicial review or whether it was a purely pragmatic effort to preserve an independent judiciary. Of course, it could be both: The prospect of institutional death wonderfully focuses the mind.

Fully answering the question, of course, requires deep investigation of the meaning of the original Constitution (what role federalism?) as well as the meaning of the Fourteenth Amendment. I've written books on both subjects but, for now, this:

I believe there is good reason for the federal courts to always engage in heightened scrutiny of federal action--this is because a fundamental right is always at stake in such cases, namely the people's retained right to local self-government. This kind of judicial engagement requires the federal government to explain, in every case, how a given action can be reconciled with a national government of limited enumerated power. To the extent that the New Deal Court can be read as opening the door to a federal government of general police power, I think this is an unpersuasive reading of a document containing enumerated powers.

Liberty of contract, of course, had been applied against the states (see Lochner), and footnote four suggests that, in future cases, the Court would limit its intrusion into state authority to just those "specific prohibitions" written into the text and incorporated against the states by way of the 14th Amendment. I think this is a fully persuasive account of both the 14th Amendment and our dualist Constitution which leaves to the people in the states sovereign authority over all matters not delegated away into the hands of the federal government (including the federal courts). This too is a liberty, and a great one. It is the liberty to deliberate and decide policy on every "unenumerated" manner of local concern, from education to healthcare to child welfare to marriage to parking enforcement. These are not unimportant matters, nor are they unrelated to natural rights. They are simply matters upon which we as a society have yet to reach such a broad substantive consensus that we can claim to have removed the subject from democratic deliberation.

This, at least, was the vision of footnote four (and of Jackson's later opinion in W. Va. Bd. of Ed. v. Barnette). It is a vision which views the court as constitutionally constrained to apply heightened scrutiny in only a certain category of substantive claims, and in all others leaving the matter to local control subject only to the requirements of due process (process!) and equal protection. But a majority of the modern Court chafes at the idea of constraining themselves in their substantive review of local policies. Worse, instead of expanding the number of "fundamental" rights calling for heightened judicial review, the Court appears to be on the verge of removing altogether the constraints of tiered review. This is not liberty, this is a power grab. The Court (and country) knew this in 1937 and it's worth remembering again.

read full comment
Image of Kurt Lash
Kurt Lash
on June 25, 2015 at 10:41:10 am

"But a majority of the modern Court chafes at the idea of constraining themselves in their substantive review of local policies. Worse, instead of expanding the number of “fundamental” rights calling for heightened judicial review, the Court appears to be on the verge of removing altogether the constraints of tiered review. This is not liberty, this is a power grab"

Would someone clear up a (my?) misunderstanding of these fine comments and essay.

Yes, this would appear to be a power grab - does anyone expect anything different from a Judiciary intoxicated with its own importance?

But - it seems that the arguments above present a contradiction:

If the Court "expand(s) the number of “fundamental” rights calling for heightened judicial review, would this not also be a power grab and a further permutation of the "political question" doctrine. The Court in effect would also be embarking upon additional "scrutinizing" of local police powers and would once again be determining what is acceptable policy. Bear in mind that the States are quite capable and ready to legislate away personal liberty as it suits their fancy - yet, is that not the price of Federalism? - and, theoretically, the people do have an option to "vote the bums out." Not so with the Court. It appears that stare decisis also applies to their tenure on the bench. The Court, thus becomes the final arbiter of nearly all political questions.

But how is this different from "tiered review"? - In both cases, the Court is determining what is acceptable Legislative behavior and not permitting the political process to resolve the issues. Granted, "tiered" scrutiny does have a greater tendency toward (perceived) arbitrariness - but ultimately, it is the Court defining legislative parameters.

Perhaps, to borrow Michael Greve's term, if we did not have an ersatz Legislature, there would be an effective counterbalance to the musings / divinations of the Court - but we do not. Are we prepared to let the Court make final determination on ALL local police power legislation. This seems inescapable if we have the court apply "heightened" scrutiny to an ever growing list of legislative initiatives. Then again, "tiered" scrutiny also leaves the Court with an overly enhanced role in the matter also.

Well, guys, I guess, the court wins - no matter what!

read full comment
Image of gabe
gabe
on June 25, 2015 at 11:24:06 am

If today's dissent in King v. Burwell by Justice Scalia doesn't capture the spirit of what animates at least 6 of the current justices of the Supreme Court, I don't know what does: "And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites." I read this as an attack on the philosophy behind tiered scrutiny and the notion that an objective reading of statutes is subordinate to affirming "legislative intent" whatever that means.

read full comment
Image of Garrett Snedeker
Garrett Snedeker
on June 25, 2015 at 11:57:47 am

It means whatever five Black Robed diviners of the arcane say it means!

As I said below - no matter how you slice it - THE COURT comes out SUPREME - it is they who decide what is legislative intent AND GOOD POLICY.

BTW, Folks:

What level of scrutiny was employed here? or was this an instance of Nixonian "modified limited hangout" scrutiny?

read full comment
Image of gabe
gabe
on March 19, 2018 at 19:06:58 pm

[…] probably outdated,” or “The Ninth and Tenth Amendments don’t really count.” Tiers of scrutiny, in which courts provide more protection for some constitutional rights rather than others (or not […]

read full comment
Image of Individual rights trump government power – Pacific Legal Foundation
Individual rights trump government power – Pacific Legal Foundation
on March 24, 2018 at 21:38:56 pm

[…] explosion of government power far beyond anything the Framers could have ever imagined, differing protections for different constitutional rights, and new “rights” created out of thin air, not […]

read full comment
Image of Judges need to do their jobs – Pacific Legal Foundation
Judges need to do their jobs – Pacific Legal Foundation

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.