The Shell Game of “Tiers of Scrutiny”— Exposed, Once and for All

We have absorbed over the last few weeks the burst of anger on the part of pro-lifers and conservatives over the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt. The Court struck down a measure that sought a dramatic improvement in the professional quality, and the safety, of the surgical suites involved in abortion.

To call the measure “comprehensive” would be an understatement. For what else could be said of a regulation of abortion that sought to prescribe “a clear floor area of at least 240 square feet” in which the “minimum clear dimension between built-in cabinets, counters, and shelves shall be 14 feet”?

But that the Court should object to a measure aimed so comprehensively at the safety of patients, was taken as a point that has deepened the anger with disbelief. And yet, if the pro-lifers could recover their most sober judgment, it’s the reactions of disbelief that should stir the deepest disbelief.

I was in the courtroom on the day this case was argued early in March, and the air was charged with serious concern precisely because the outcome was no sure thing. As everyone understood, it would hinge on Anthony Kennedy, and his move to join the majority in this case simply confirms that the absence of Justice Scalia did not affect the result.

The uncertainty here was: Would Kennedy hold to his willingness to sustain measures on abortion that barred the gratuitous, callous killing of the child in the womb—as he revealed in his sharp dissent on partial-birth abortion in Stenberg v. Carhart (2000), or in his opinion for the Court, sustaining the federal ban on partial-birth abortion in Gonzales v. Planned Parenthood (2007). Or, on the other hand, would he recoil from a scheme that was put forth, with too much indirection and cleverness, to clamp down on the “right to abortion”?

The heart of the problem was that the legislators had to frame this law—and lawyers had to defend it—without speaking the truth that dare not speak its name, or the concern that truly animated this law. The justices on the Supreme Court who were averse to this law could hardly avoid that central truth of the matter, and they had not the slightest hesitation in pronouncing it: Behind all of the talk about safety they saw the intention of forcing more abortion clinics out of business. They suspected that this regulation was not exactly like other forms of regulation, for they had reason to think that the object of the law was not to make the business of abortion safer, but to have far less of it.

The law required that a “physician performing or inducing an abortion . . . must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that . . . is located not further than 30 miles from the location at which the abortion is performed or induced.” That provision came along with other requirements more demanding on the cleanliness and professional protocols of the surgical suites—far more so than the regulations typically enforced on abortion clinics in the past.

In the notable case of Kermit Gosnell in Philadelphia, the authorities had held back from even a cursory form of regulation because there was an unmistakable sense in the air that what was going on in those “surgical suites” was no ordinary surgery. The business might have been grisly, but it was seen as bearing the overtones of a “constitutional right.”

The bloody mess in Philadelphia, though, had to give rise to the question of just why this business of abortion should not be held to the requirements of safety and professional responsibility that are typically enforced on other clinics, or even other forms of “business.” As Justice Alito observed, if these abortion clinics “were simply asserting a constitutional right to conduct a business or to practice a profession without unnecessary state regulation, they would have little chance of success.”

But the Solicitor General of Texas, arguing before the Supreme Court, could not openly declare that the lawmakers were animated by a deep moral objection to abortion itself, an objection woven with the evidence of embryology and principled reasoning. The legislation had to be defended solely on the grounds of making the abortions safer, less life-threatening, for the women who were undergoing the procedure.

When the case was framed in that way, it opened itself to a counterattack that was as relentless as it was predictable. The Court was told:

• That only about 1 percent of abortions in Texas had encountered the complications that required admissions to a hospital;

• That there have been far more emergencies of that kind emanating from liposuctions and colonoscopies, and yet those casualties have not inspired the same extensive measures;

• That before the enactment of the law, there were more than 40 licensed clinics on abortion in Texas. But in the run-up to enactment, about half of the clinics closed, and in one estimate, there would be only seven or eight clinics remaining that could meet the standards of the law.

Moreover, with the geographic spread of the remaining clinics, there promised to be a notable increase in the distance that “women of reproductive age” would have to travel in reaching a clinic. There was thought to be a 350 per cent increase in the number of women in this group living more than 150 miles from a clinic, and an even larger rise in the population of these women living more than 200 miles away.

For the judges who had absorbed the phrases running through the cases on abortion, those estimates were enough to trigger the charge that the law placed an “undue burden” on the freedom of women (and their helpmates) to choose abortions.

The opponents of these laws have usually been able to summon the most concrete sense of the strains on women as they reckon the need to drive for several hours on a highway, and arrange accommodations for themselves at motels along the way. And yet this concreteness, so vividly summoned, works by abstracting the action from the plainest things that it means for the woman who is engaging in it: She cannot really purge from her thoughts that she is about to put herself under a surgical knife with the purpose of snuffing out an innocent human life, the child she is carrying.

It may occur to her as well that she is submitting herself to that surgery even when it is not made necessary by any medical condition that is threatening her health. And totally screened out of the picture, in the reckoning of “burdens,” is this cardinal question: Is it really too much of a burden to ask people to drive for three to four hours, for a distance of some 150 miles, before they take the step of destroying an innocent life?

But then again it takes a rather special sensibility to write the lines set down by the District Court judge who struck down this legislation—and which Justice Breyer and his colleagues had not the slightest qualm about citing: that “before the act’s passage, abortion in Texas was extremely safe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure.”

About 60,000 to 72,000 abortions per year. And virtually no “deaths”?

The deaths of the unborn children have been screened from view because these are lives that just don’t “count” any longer as human lives for Stephen Breyer and his liberal colleagues. Nothing runs deeper in these cases than that screening, and it works to produce the trick-of-the-eye here: The arrangements in Texas are assailed because the law will impose an “undue burden” on those seeking abortions, and yet the case doesn’t come to us on the force of any complaint brought by a woman who claimed to have been put under an “undue burden” as a result of the law, and deflected then from having an abortion.

But is that not what the established rules of “standing” are meant to foreclose? Isn’t it the very point of these rules, respected by liberals as well as conservatives, that cases undergo these tests before they become “justiciable” or the fit objects of judgment by unelected judges?

And yet, as Justice Alito pointed out, the rules of “standing” were subverted here by the willingness to have the cases brought by the people who operate the clinics that are threatened with closure—not the women who may be faced with discouragements for the abortions they’re pondering. This was notably different from the cases on “partial-birth abortion,” where the law would bar the ever-willing, ever-active Dr. Carhart from performing these brutal procedures.

Yes, many clinics in Texas have closed, but many of those closures would have been produced by the decline of demand in their area, or by the advent of new, larger, more efficient clinics brought on line by Planned Parenthood. Abortions have run to about 60,000 to 72,000 per year, and yet there has been no evidence of any appreciable decline in abortions as a result of this move by Texas to bar the advent of new Kermit Gosnells operating in their state.

But this inversion in the rules of standing was hardly the most serious inversion in this case, or the inversion that ran the deepest. It was Justice Thomas who brought out these points with an explicitness so jarring that one could hardly fail to notice.

The most immediate feat of judicial acrobatics came in turning on its head the reasoning offered by the Court only a week earlier in sustaining the policy on racial preferences at the University of Texas. Fisher v. University of Texas had come before the Court before, and Justice Kennedy had insisted in the earlier hearing of the case that racial discrimination in any degree had to be examined with a strict scrutiny. The expectation was that he would hold to that standard in a severe way this time, even as the university contrived one scheme after another to keep in place a system in which decisions on admission would still pivot at some point on the race of the applicant.

But now Kennedy was willing to leave the scheme of racial preferences intact even as he acknowledged that “admissions officers can consider race as a positive feature of a minority student’s application.” He now suggested that the racial preference was softened by the fact that “consideration of race is contextual and does not operate as a mechanical plus factor for underrepresented minorities.” That race may act as one factor among many does not, however, dislodge the fact that in some instances the student’s admission will indeed pivot decisively on his or her race.

What happened then to Kennedy’s resolve to judge any scheme of racial preferences with the most demanding standards that attach to “strict scrutiny,” as the Court has bandied about that term? That resolve—and that standard—now gave way to a willingness to judge by the softer standard of whether the legislation at least bore a “rational relation” to some legitimate end that the legislature could pursue.

The Court would essentially back away from critical engagement as long as the legislation was simply not random—as long as it bore any plausible relation to a legitimate end, even if it bore little chance of begetting the “good” it was proclaiming to seek. Justice Kennedy was no longer disposed, then, to demand the evidence to support the starry-eyed claims that a critical mass of racial or ethnic minorities would enhance “diversity,” foster friendship and respect, and raise the performance of students. The fact that these policies were attended by these pious wishes was enough now for Justice Kennedy and his liberal colleagues to leave the university free to dally with schemes for racial preferences, perhaps until it could figure out just what might count as evidence to support its case.

But as Justice Thomas pointed out, nothing offered a more dramatic contrast with the standards that the Court was invoking now with the clinics where abortions are performed. The purpose of the legislation in Texas was to insure the cleanliness and adequacy of the medical equipment, along with the competence of the surgeon. Those measures bore the plainest relation to the end of securing the safety of the women who were undergoing the abortions. Yet even measures so clearly directed to the safety of the public would be judged with the most demanding, strict scrutiny when it came to abortion, for the freedom to order an abortion stood now for some of the judges as one of the truly “first freedoms”—an anchor of personal freedom no less than the freedom of speech or religion.

Thomas cut to the shift in standards: “even if a law imposes no ‘substantial obstacle’ to women’s access to abortions, the law now must have more than a ‘reasonabl[e] relat[ion] to . . . a legitimate state interest.’ ”

And here, as he pointed out, with a thin delicacy, Kennedy was overturning his own reasoning once again, as he had in the Fisher case on racial preferences. For Kennedy had written in dissent in the Gonzales case, on partial-birth abortion, that “[c]onsiderations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends.” If the law on abortion in Texas were judged with the same deference that was accorded to the work of the legislature on racial preferences, that law would have been readily sustained.

But as Justice Thomas sounded the alarm—and sounded it rightly—this was not merely another one of those instances in which judges had fallen into inconsistency or even manipulated the law for their own favored ends. It was not merely a matter of inverting “rational relation” and “strict scrutiny.” To borrow a line from Edmund Burke, it was not a matter of steps in the ladder, for the whole scale was false. What Kennedy and his colleagues managed to reveal was the shell game—the philosophic and logical emptiness—of “tiers of scrutiny.”

The terms “rational relation,” “strict scrutiny,” and “tiers of scrutiny” have been picked up and repeated by judges because they were evidently taken seriously over the years by justices on the Supreme Court. Lawyers in turn were induced to adopt them as mantras and keep repeating them, not because they had any comprehensible meaning, but because judges continued to treat them as though they did. There was, early on, a distinction between laws that required merely a “rational relation” to their ostensible ends, while at the other end of the spectrum were laws so seemingly hard to defend in principle that they called for “strict scrutiny.”

After a while there was added, of course, some middling standard, either more demanding or more relaxed, a category of “intermediate” scrutiny, mainly dealing with allegations of discrimination based on sex. But intermediate between what? The philosophic looseness of the anchoring terms could hardly be firmed by the mere invention of another term, dangling somewhere in the middle.

As Justice Thomas recognized, this scheme was a relatively recent innovation, taking hold mainly in the 1960s. But several commentators have traced its origin quite plausibly to Justice Harlan Stone’s famous Footnote 4 in the Carolene Products case in 1938. In that note, Stone suggested tiers of rights. The presumption of constitutionality might be “narrower . . . when legislation appears on its face to be within a specific prohibition of the Constitution.” And there would be an even “more exacting scrutiny under the general prohibitions of the [Fourteenth] Amendment” when legislation restricted “those political processes, which can ordinarily be expected to bring about repeal of undesirable legislation.”

In this way, the Court brought forth a more demanding test for legislation that would restrict political speech. In contrast, there would be a far lesser protection for the “commercial speech” that people used in hawking their wares. It wasn’t until the 1970s that the recognition began to break through that the protection may be claimed quite as aptly for the speech that forms a natural part of the business of selling a legitimate product or service.

But in all strictness, anyone with a smattering of philosophy, or some brush with the study of logic, should have reacted as one might to a note played off-key. After all, a law works by closing down personal freedom and private choice and replacing them with a uniform standard imposed on all. And unless law is simply understood as the brute exercise of power, or the Rule of the Strong, this imposition of law is something that engages our moral reflexes and calls out for a “justification.”

If that is the case, how would it make sense to mark off a category of laws that require a “compelling” justification, as opposed to a laws that can be floated with a justification not exactly compelling, but good enough, say, to get through the day? Can we have, in contrast to a “compelling justification,” a “lame justification” that still satisfies the properties of a real “justification”? For the man who sees his freedom to make a living blocked, say, by price controls, a weak justification is no justification at all.

In the famous Bakke case (in 1978), Justice Lewis Powell went as far as any judge has gone to show that the wrong of racial preferences is virtually “categorical”—that it involved in different ways the visiting of punishments or disabilities on white students who bore no responsibility for the evils that the policy at hand was seeking to remedy. But apparently the wrong wasn’t really categorical—wrong in all instances—for Powell managed to find theories that could justify these racial preferences in hopes of achieving something called, with more fuzziness than exactitude, “diversity.”

If we understood, for example, that it was in principle wrong, categorically wrong, to kill people on the basis of their race, we would readily grasp that it was quite as wrong to “take race into account” or to “consider race at the margins” in deciding whether or not to kill.

Consider, in contrast, that anchoring axiom of legal and moral judgment: “we ought not hold people blameworthy and responsible for acts they were powerless to affect.” There are no circumstances or contingencies in which that would fail to be true. But the judges have never come to that understanding that the wrong of racial discrimination was indeed categorical in that strict sense.

For that matter, they’ve never shown any accurate understanding of what is meant by a “categorical” proposition in anything but a grammatical form. (“The terms of the President and Vice President shall end at noon on the 20th day of January.”) But in that case, the category of “strict scrutiny” finds no firm anchor. It signals nothing deeply, categorically, wrong; and it explains nothing of the standards that come into play in testing a truly “compelling” justification.

Justice Scalia spoke a piercing truth here in the case on the Virginia Military Institute (United States v. Virginia, 1996) when he remarked that those three basic tiers of “rational basis,” intermediate, and strict scrutiny—“are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case.” And Justice Thomas has now pronounced what should stand as the final, hard judgment here, writing that the appeal to these “tiers of scrutiny” is “increasingly a meaningless formalism. As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat.”

The hard truth, he thought, is that there are no standards that mark off certain constitutional rights as more important than others. And no propositions to explain just what standards the Court is using even when it is seeking a “compelling” justification. What has been revealed in the case of Whole Woman’s Health is that the rights that demand a strict scrutiny for their protection do not disclose themselves on any moral scale of rightness. They are simply the rights that the judges care about more than others. And in the world of law that has taken form over the last 40 years, there is virtually nothing that liberal judges or politicians care more about than the rights of abortion and sexual liberation.

Justice Thomas summed it up with a crisp directness:

The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some constitutional rights are more equal than others. A plaintiff either possesses the constitutional right he is asserting, or not—and if not, the judiciary has no business creating ad hoc exceptions so that others can assert rights that seem especially important to vindicate. A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment. [Italics added.] Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.

But to ask whether a law “infringes a constitutional right, or not” will not depend on any mechanistic reading of the Constitution, nor will it hinge on degrees of justification. It will depend on the same standards of judgment used by ordinary folk, as well as lawyers, as they judge everyday the rules that restrict their freedom, on things smaller or larger— whether with traffic lights or price controls. Is it plainly justified to halt for a moment the liberty to move in traffic? In contrast, is it really as clear that the government knows what price people may rightly charge in selling their chickens?

The laws in Texas, on abortion, should have stirred no doubts either as a measure directed plainly to the safety of women undergoing abortion, or even more plainly, as a policy seeking to divert people from the killing of innocents in the womb.

In the novel Brideshead Revisited, the principal figures, Charles and Julia, make their way up the stairs of the castle to visit the venerable Nanny Hawkins in her quarters. It is wartime and she is listening on the radio to one minister in the government, a figure in the novel, as he castigates Hitler. Nanny Hawkins remarks that if Mr. Hitler could hear Mr. Mottram, and Mr. Hitler spoke English, he would “feel very small.”

If the judges in the majority can still understand ordinary English; if they can read closely the dissent of Justice Thomas in the case of Whole Woman’s Health v. Hellerstedt, and if they can recall enough of the canons of reason that used to mark our jurisprudence, they should feel very small indeed.

Justice Thomas marked, with his opinion in this case, the end of his 25th year on the Court. And he used that moment to speak a bracing truth on the state of mind that has made our jurisprudence the shabby, shallow thing it has become.

Reader Discussion

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on July 13, 2016 at 14:35:35 pm

I find Thomas’s dissent curious—not because I disagree, but because I believe the argument had been pretty thoroughly documented by the Legal Crits back in the 1980s. Is it really possible that anyone who works in the law in 2016 can be shocked, shocked to learn that facially neutral doctrines can be applied in selective ways to produce politically-driven outcomes?

Indeed, the only alternative for a judge to apply vague doctrines in a manner that reinforces the judge’s worldview would be for a judge to interpret vague doctrines at random. But we are long past the time when anyone should imagine that judges see some ethereal perspective that transcends viewpoint. The idea that judges are just some kind of passive umpire calling balls and strikes is merely pabulum intended for middle-school civics classes and Senate confirmation panels.

Recall the words of Learned Hand, a guy who knew a thing or two about judging:

I venture to believe that it is as important to a judge called upon to pass on a question of constitutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with the books which have been specifically written upon the subject. For in such matters everything turns upon the spirit in which he approaches the questions before him. The words he must construe are empty vessels into which he can pour nearly anything he will....
* * *
[Liberty] is the product not of institutions, but of a temper, of an attitude towards life; of that mood that looks before and after and pines for what it is not. It is idle to look to laws or courts, or principalities, or powers to secure it. You may write into your constitutions not ten, but fifty, amendments, and it shall not help a farthing, for casuistry will undermine it as casuistry should, if it have no stay but law. It is secure only in that ... sense of fair play, of give and take, and the uncertainty of human hypothesis, of how changeable and passing are our surest convictions, which has so hard a chance to survive in any times, perhaps especially in our own.

Learned Hand, In Commemoration of Fifty Years of Federal Judicial Service, 264 F.2d xxxviii (2d Cir. 1959).

In short: Yes, to the extent we rely on judges to exercise judgment, judges will inevitably exercise not merely intellect but power. But what alternative do we have? All common-law doctrines were themselves the product of creative judges. We search in vain for a doctrine that we can apply without the exercise of judgment. Instead of doctrine, we rely on a temper, an attitude toward life, a mood that looks before and after and pines for what it is not.

And especially where a judgment calls for defending the rights of the powerless against the focused opposition of the powerful, any doctrine that would be applied without concern for context will eventually become as useless as the Maginot Line. Courts need to be aware of the purposes for which various rights have been articulated, and the kinds of threats against which those rights were erected.

And so it was in the Texas abortion case. I did not know how the court would articulate its holding with respect to doctrine. But the dynamics were clear: Texas regulated abortion ostensibly as a means to promote health and safety. But it was clear that Texas regulators wanted to ban abortion (an inappropriate objective), and these regulators failed to act in a manner consistent with their professed concern to promote health (by, for example, regulating other, more hazardous, medical procedures). This leads to the conclusion that the health and safety concern was a pretext. If the Court failed to strike down the Texas law, it would be declaring that states can intrude upon constitutionally-protected autonomy rights merely by creating a pretext grounded in some state interest. Because that conclusion would be untenable, I felt strongly that the Court would have to strike down the Texas law.

The precise doctrine the Court would articulate in reaching this conclusion would be an after-thought. But if you’ve ever worked as a judicial clerk, you’ll know that that’s how decisions get written: The judge'd judgment determines the answer. And if judge's stated rationale for her decision actually conforms to the judge's thought patterns, that's a happy coincidence.

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on July 13, 2016 at 15:40:29 pm

I respectfully have to disagree with some of the essay to a degree. Judges need a certain amount of latitude in adjudicating.

One of my favorite essays on law in this forum was Rappaport's discussion of why police allow drivers to go 10 mph over the speed limit. Even though the law is strict, the police officer needs some latitude in exercising some amount of judgment. The police increase or decrease their scrutiny depending on conditions and their own judgment.

In my professional realm of software engineering, we have problem with keeping hackers out of computer systems. As one expert stated it, as soon as a 10 foot wall is put up to keep the hackers out, the hackers build an 11 foot ladder to get over it. We use rules in the form of computer code to slow them down. The rule of legal code has the same issue. There is always a way around the rule.

That's because rules are limited in their scope. There is more in the universe than can be encompassed in a rule. That's how lawyers find ways around rules in the form of writings, and how hackers find ways around the rules keeping them out of systems. They don't violate the rules. They just go beyond the limits of the rules.

The difference between the rules of a computer and the rules of law is that law is interpreted by persons, not machines, and persons can recognize the universe outside the rule, so they can apply a greater and more general rule ("Bad guys, that's wrong, so you may not do that!") when the stated rule is insufficient.

The problem with the tiers of scrutiny is not so much that a certain amount of leeway is exercised by the court, but that judges are appointed specifically because they have skewed views of the universe outside of the limited rule of law. They are a product of the source of their appointment.

As is pretty much always the case with problems with government, the central issue is how governors are placed into office. Presidents and senators are the product of dysfunctional election systems and a dysfunctional operative systems. The broken election system draws governors into office because a small number of immoderate partisans want them elected. The broken operative systems direct governors to execute their duties of office in accordance with excess party discipline and leads them to operate in a way that supports party over the citizenry. With those dysfunctions in place the officeholders appoint justices according to party needs and immoderate ideations, not civil needs and rational and moral ideals, so you end up with a wonky court that is out of touch with reasonableness and disconnected from mainstream society.

If you have an excellent system of government and you put a bunch of bozos into office, the bozos will create a mess. If you have a horrible system of government and you put a bunch of excellent characters into office, they will eventually clean it up and you will have a happy society. The answer to most problems of government is figuring out how to get excellent characters into office.

The Texas law should have been struck down, not because of any wonky rulings, but because it was less an assertive address to the issue of abortion and more a writing of Texas' terms of surrender. I'm not so sure the people of Texas recognized it as such. The wonky court did Texas a favor.

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Scott Amorian
on July 14, 2016 at 10:29:33 am

"Yes, to the extent we rely on judges to exercise judgment, judges will inevitably exercise not merely intellect but power. But what alternative do we have?"

This may very well be true;
1) should we not ask ourselves if it is something to which we should acquiesce?
2) Should we, as you seem to suggest, applaud, as does Learned Hand, this inability to overcome one's own personal worldview?
3) Would we not characterize those who, in other spheres of life, commerce, personal relations, possess such a view / demonstrate such behavior as "selfish" and unable to move beyond their own personal *interests*?

As a description of what IS and what we have come to accept, nobody has presented us with a rather finely crafted exposition of the matter.

Ought we to be content with this?

I, for one, think not; I also think that it is possible for one to *judge* without ones personal preferences overshadowing the rule of law. Or are we to find ourselves, always, at the mercy of the "shifting", faddish received wisdom of the (judicial) day.

Are we to be "underlings* not to the stars but rather to the be-gowned philosopher-kings (queens) of the day?

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on July 14, 2016 at 10:38:42 am

"but because it was less an assertive address to the issue of abortion and more a writing of Texas’ terms of surrender."

Great line!

"Judges need a certain amount of latitude in adjudicating."

It is unavoidable, true; but "how much", at what level? Nobody is quite correct when he states that Common Law is in some sense an amalgamation of judicial latitude over time. All this done in the absence of a *limiting* Constitution. should we provide as much creative leeway to jurists when dealing with Constitutional issues?

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Image of gabe
on July 14, 2016 at 10:47:02 am

This is a characteristically elegant and compelling essay by Professor Arkes, and well captures Justice Thomas' critique of the tiers of scrutiny--a critique that I find persuasive. The Constitution knows no second-class rights any more than it knows second-class citizens, and the tiers have proven sufficiently malleable in practice as to lend themselves to results-oriented application.

That being said, there is a profound tension between Professor Arkes' recognition that the Texas legislation at issue was "animated by a deep moral objection to abortion itself" and that it was designed "to divert people from the killing of innocents in the womb," on the one hand, and his argument that the legislation should have been upheld on the grounds that it was "aimed... comprehensively at the safety of patients," on the other. The Whole Woman's Health majority concluded, after careful analysis of the record, that the fit between the legislation and the proffered end of protecting the safety of patients was quite poor- so poor, indeed, to leave little doubt that (although the majority does not say it) that the legislation was primarily designed to achieve an end that the Court has concluded is constitutionally improper, namely, simply impeding access to abortion. That is to say, safety was a pretext. Professor Arkes does not substantively engage with the majority's analysis at all.

Professor Arkes might respond by contending that preventing innocents from being killed is not a constitutionally improper end-quite the contrary, it's constitutionally mandatory. But Texas did not state that it was pursuing that end, as Professor Arkes acknowledges. So we're left with the question of whether judges must reflexively uphold the government's actions when officials pronounce the words "health and safety."

I know that Professor Arkes' answer to that question is "no." As he puts it, "unless law is simply understood as the brute exercise of power, or the Rule of the Strong, th[e] imposition of law is something that engages our moral reflexes and calls out for a 'justification.'" Thus, he has advocated searching scrutiny of regulations of economic liberty, with an eye to identifying the true ends of those regulations-whether they're *actually* designed to protect the public rather than the interests of politically powerful industry incumbents. And that's entirely correct-under our Constitution, when the government's actions are challenged in court, the government must offer a reasoned, evidence-based justification, and that justification must be grounded in a proper governmental end. Judges are duty-bound to determine whether such a justification has been given.

So, why was the Whole Woman’s Health Court wrong, if indeed it was wrong? It can't be because judges should reflexively uphold enactments passed and defended in the name of health and safety. Neither Professor Arkes nor Justice Thomas offers a convincing critique of the majority's efforts to determine whether the challenged legislation was calculated to protect patient safety. If the Court was wrong, it must be because the Court operated from the wrong premise about what abortion is-a premise that was not contested by Texas.

But should the Court have upheld pretextual legislation because Texas wouldn't have had a chance, had it contested that premise? The takeaway from such a decision would be that states are free to pass regulations that are designed to suppress rights that the Court has determined to be constitutionally protected, so long as they're prepared to invoke public health or safety in court. That's what happens under the rational-basis test, the default standard of review, in cases that don't implicate rights that the Court has deemed "fundamental." That's what's starting to happen in cases involving certain "fundamental" rights, like the right to bear arms and the right to privacy in association. That's a takeaway that should make anyone who values our constitutional order shudder. Those who do value that order should insist that the Court carefully scrutinize exercises of regulatory power over private citizens in all contexts, rather than simply a few, not condemn the Court for engaging in careful scrutiny at all.

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Evan Bernick
on July 14, 2016 at 12:49:36 pm

"The takeaway from such a decision would be that states are free to pass regulations that are designed to suppress rights that the COURT HAS DETERMINED to be constitutionally protected, so long as they’re prepared to invoke public health or safety in court".

At root, is that not the very issue here and one that Professor Arkes correctly identifies.

Those rights, deemed to be constitutionally protected by the Court, will be sustained, supported and / or further advanced by "shifting" levels of scrutiny, each level of which may also be tempered / broadened, etc as the good Justices believe is necessary to protect (only?) primarily those rights which in their view warrant such protection.
Yet, using the same framework of scrutiny, indeed, in some instances, the same *level*, the Court succeeds in justifying the diminution of other rights, previously thought worthy of similar constitutional protection. Is that not the point of both Professor Arkes and Justice Thomas' contention?

Further, this rather malleable structure of "scrutiny" serves as a rather convenient method for the type of jurisprudence that nobody.really claims is unavoidable (inherent?) in the Judiciary - A rather clever means of implementing one's personal worldview while proclaiming to all the world that actual justice is being done!

Just wait until "rational basis" scrutiny is applied to all of the *upcoming* restrictions a new Administration (and State level as well) will impose on Second Amendment rights; or how about overturning Citizens United, well, because their is a rational basis for limiting political speech. SCOTUS applies what ever level of scrutiny best serves the purposes of a simple majority; if necessary, it invents, redefines each level as it sees fit.

In this they claim to do their duty.

No, Evan, I will take your conception of judicial duty before I am able to accept the notion that there is no Jurisprudential escaping the "tugs of the heart" as some would suggest. For those who do so suggest, I suggest they look a little more closely at some of Justice Scalia's decisions, where his personal opposition to a practice / prescription DID NOT prevent him from supporting it.

Then again, I suppose one can not expect as much from the Left.

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on July 14, 2016 at 15:12:26 pm

Well, the court's gonna do what the court's gonna do. If you have a wonky court it's gonna make wonky rulings in wonky ways.

My point is that whatever idea any of the 300,000,000+ Americans who are not sitting on the bench have regarding what it is the court "should" do doesn't mean too much. What matters is getting a less wonky court. And that means changing how they get appointed.

You have a primary system that gave us the two current presidential candidates (GAG!). You have a senate that is in thrall to the party leadership. Those problems define the type of people who get elected and how they operate; wonky partisan presidents and party controlled senates. That system can only give us a wonky partisan court. Fix the problems with the election of president and the operation of the senate and the court will eventually clean itself up.

But no rule of "how much latitude" is going change the way the court works, especially when the rule comes from outside the court.

I argue that the Constitution is limited, it just isn't limited the way that many of us want. But again, that's a problem of who holds office because it's the office holders who choose to enforce the limits or not, and what the universe beyond the written rules looks like. Is human life sacrosanct, or are we just meat that talks gibberish? Some days I feel like I am the latter. :)

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Scott Amorian
on July 14, 2016 at 16:54:14 pm

Thanks for this, Professor Arkes. This will be helpful for my future attempts in teaching students the significance of the three tiers. Or not, as it will baffle not a few of them to learn how arbitrary the tiers are, in conception and application.

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Carl Eric Scott
on July 15, 2016 at 18:34:26 pm

Excellent essay! It seems with each successive abortion related case that comes before the court, the liberal justices on the court are forced to reach to ever higher tiers of absurdity to sustain a ruling in Roe that in itself was flawed in its reasoning and application of law. This can be likened to that lie, where once told, the teller must tell ever greater successive lies in order to cover for each preceding one.These justices of course, feel the so-call constitutional right to an abortion is "settled law" and they seem to bristle at its continual challenge over more than forty-years, and at being forced to come up with ever more clever distortions of legal reasoning and justifications to sustain it.

To my knowledge, there has never been a matter of civil rights rulings or law that has continued to garner such persistent challenges - in frequency and in duration over time. Again, to my knowledge, I don't see the kind of broad sustained opposition and continual challenges at the same rate or duration, to other civil rights cases (i.e. Segregation, Bi-racial marriage, etc.) as is seen over Roe. Presumably, this is because Americans accept the moral principle underlying these other civil rights ruling, or at least, are willing to concede that the rulings were based on principled and solid legal reasoning.

Conversely, to me, the sheer volume of challenges to Roe or elements of Roe, is attributable to more than just a reflection of an over-zealous, determined opponent. It suggests to me, the best evidence, that the moral and legal principles and reasoning behind the Roe decision were/are flawed from the beginning. That the American people are not convinced of the moral and/or legal principle purported to exist in Roe, by that court and subsequent liberal courts, and no amount of acrobatics of legal reasoning or levels of scrutiny will ever succeed in making the basis for Roe anything but evermore inscrutable.

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Paul Binotto
on July 15, 2016 at 20:36:03 pm

Excellent, Prof. Arkes. Thank you for your work. The question arises whether legislation to impose health requirements on cosmetic surgery facilities, tattoo parlors, sex-change surgeries and such will be struck down for the same reasons as the Texas legislation.

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R. Messall
on July 16, 2016 at 09:27:11 am

Good question that begs to ask another question: would it have been wiser and a more sustainable law, had the Texas Legislature written it to include all these other various operations you list, (I presume these also are not subject to the higher level of regulation provided for in Texas HB 2), plus abortion clinics? Of course, each of these separate industries certainly constitute an interest group that could be anticipated to lobby against HB 2, if it were to be applied to them. And, it may be further anticipated that HB 2 legislation would also force, as was apparently the case with many abortion clinics, a substantial number of these other business operations out of business due to an inability or unwillingness to comply.

Does the higher moral principle of seeking to significantly contract the abortion industry in Texas (and thus potentially save large numbers of unborn children, as well as better protect women's health and safety), justify the foreseeable collateral damage to these other lawful industries, if they were so too, encompassed in HB 2? Such a comprehensive measure would require great courage and resolve on the part of the Texas Legislature.

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Paul Binotto
on July 19, 2016 at 11:22:20 am

[…] invite you to read Prof. Arkes’s essay, “The Shell Game of ‘Tiers of Scrutiny’ Exposed, Once and for All,” in the Library of Law and Liberty.  In the piece, Prof. Arkes offers commentary on the 2016 Texas […]

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Image of “The Shell Game of ‘Tiers of Scrutiny’ Exposed, Once and for All” –Prof. Arkes in the Library of Law and Liberty | James Wilson Institute
“The Shell Game of ‘Tiers of Scrutiny’ Exposed, Once and for All” –Prof. Arkes in the Library of Law and Liberty | James Wilson Institute
on July 29, 2016 at 19:05:56 pm

[…] the wake of Whole Woman’s Health v. Hellerstedt, Hadley Arkes exposes the interpretive shell game involved in ‘tiers of scrutiny’ at the LibertyLaw blog, while at SCOTUSBlog, Erika Bachiochi considers the proposition that […]

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Weekend Reading – The Ordeal of Consciousness

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