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.