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.