fbpx

Justice Thomas on the Tiers of Scrutiny

In a prior post, I noted Jeffrey Toobin’s criticism of Justice Clarence Thomas for Thomas’s claim that since the New Deal, the Supreme Court’s constitutional doctrine has become an ‘unworkable morass of special exceptions and arbitrary applications.’”  Interestingly, Toobin never argues that Thomas’s claim is mistaken.  Toobin seems to feel that voicing the criticism of the Court is itself worthy of censure, whether or not it is true.  But in my view, Thomas’s claim is both true and damning.

In his dissent in the Court’s most recent abortion case, Whole Woman’s Health v. Hellerstedt, Justice Thomas offers two basic criticisms of the Court’s tiers of scrutiny jurisprudence: the tiers are not in the Constitution and that they are followed only inconsistently by the Court.

1. The Supreme Court generally employs three tiers of scrutiny: rational basis, intermediate, and strict scrutiny. Thomas first argues that these tiers are not in the Constitution. He claims that the Court has made them up, which Thomas focusing his criticism on the famous case of Carolene Products.  Thomas argues that the Court, in a footnote that was “pure dicta,” attempted to justify its special treatment of certain personal liberties like the First Amendment and the right against discrimination on the basis of race.

Thomas is certainly correct here.  There is little in the original meaning of the Constitution to justify special scrutiny to certain rights, such as the First Amendment or Equal Protection.  Those rights certainly deserve to be enforced, but it is not clear why they are “preferred rights.”

And Thomas goes on to show how the Court would later enforce certain unenumerated rights, such as the right to privacy, with equal vigor, even though the Carolene Products did not justify it.  Instead, liberal values supported these rights.

2. Thomas’s second point is that the tiers of scrutiny are not followed consistently. If the Court followed them consistently, then at least it would further the rule of law. But they don’t.   “Strict scrutiny is now applied in unequal, arbitrary manner.”

Thomas writes:

If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result. This Term, it is easier for a State to survive strict scrutiny despite discriminating on the basis of race in college admissions than it is for the same State to regulate how abortion doctors and clinics operate under the putatively less stringent undue-burden test.

Likewise, it is now easier for the government to restrict judicial candidates’ campaign speech than for the Government to define marriage—even though the former is subject to strict scrutiny and the latter was supposedly subject to some form of rational-basis review.

I wonder what Toobin would say about these criticisms if he addressed them rather than simply dismissing them for being critical of the Court.  If the Court’s behavior is problematic – and it is – then it is open to criticism and should be criticized.

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 August 12, 2016 at 14:30:01 pm

Tiers of scrutiny are not that bad in the equal protection context. There are some characteristics that are unchangeable by the individual and have little relevance to any government action such as race. As such posing a high burden on proving that such characteristics really are for the proper governmental objectives seems appropriate. But even at the time of the 14th amendment it was understood that the equal protection under the law did not mean no discrimination such as separate bathrooms for men and women. Its when tiers of scrutiny is applied to distinguish between rights (this right is worthy of string scrutiny but that right is worthy of only intermediate or rational basis scrutiny), that is when the court goes off the rails. There is no basis in the constitution for determining that some rights deserve to be enforced but others do not.

read full comment
Image of Devin Watkins
Devin Watkins
on August 12, 2016 at 14:31:08 pm

*strict scrutiny (blasted autocorrect)

read full comment
Image of Devin Watkins
Devin Watkins
on August 12, 2016 at 17:41:33 pm

1. Why do courts apply differing tiers of scrutiny, if they’re not written into the constitution?
True, the tiers are not written into the constitution—but things such as Equal Protection are. How would Thomas have the court interpret Equal Protection without the tiers?

A. He could reject Marbury v. Madison and judicial review (which are also not written into the Constitution) and say it is solely the province of Congress and the Executive to give meaning to that phrase.

B. He could say that all laws should be subject to strict scrutiny—and thus, for example, strike any federal tax code other than a head tax.

C. He could acknowledge that B would require the court to micromanage the legislature to such an extent as to render the judicial branch obscenely powerful, and thus conclude that we need to determine which kinds of issues warrant strict scrutiny and which do not.

Sure, arguably the court has been imperfect in how it applies its doctrine—as it is in applying any doctrine. But that’s different than saying that the doctrine isn’t required just because it isn’t stated expressly in the Constitution.

In short: If you don’t like the tiers, what would you prefer?

2. Should Thomas criticize the tiers?

Toobin never argues that Thomas’s claim is mistaken. Toobin seems to feel that voicing the criticism of the Court is itself worthy of censure, whether or not it is true. But in my view, Thomas’s claim is both true and damning.

Rappaport seems to argue that if Thomas’s views are correct and damning, those are sufficient grounds for expressing them. But the answer to this question goes to what we understand the role of a judge to be.

To some extent, Thomas is merely a latecomer to the views of the Legal Crits, who long ago argued that doctrine is indeterminate, and mostly offered as a rationalization to legitimate ends-oriented decisions in the eyes of the public. The Crits sought to de-mystify and thus de-legitimate the legal process in the eyes of the public. Freed of this mystical baggage, the public would be more discerning consumers and participants in our democratic process.

At least, that was the theory. But in reality, what really happens when legal process loses legitimacy in the eyes of the public? Ferguson, Missouri happens.

Bottom line: The legal process is merely one form of conflict resolution. If people find that form illegitimate, they will turn to other forms—and I don’t think even Thomas would like those results.

Thus, part of a judge’s job is to legitimate his decisions—even when he realizes that it’s a farce. Judges are not airy-fairy academics. They are workaday problem-solvers, and they don’t have the luxury of philosophizing from the bench—except to the extent that the philosophizing helps to legitimate the court’s actions.

Thomas may be right. Right’s not the point.

read full comment
Image of nobody.really
nobody.really
on August 13, 2016 at 10:19:33 am

"At least, that was the theory. But in reality, what really happens when legal process loses legitimacy in the eyes of the public?"

Would it not be fair to say that this is precisely what motivates Justice Thomas - the loss of legitimacy consequent upon the rather "plastic" application(s) of the tiers of scrutiny.

So he may not just be right - he may be getting *the point.*

You may have argued yourself out of your own point here, brudda!

read full comment
Image of gabe
gabe

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.