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The Tiers of Scrutiny: A Public Choice Analysis

In my last post, I discussed Justice Clarence Thomas’s criticism of the Supreme Court’s tiers of scrutiny jurisprudence.  Given Thomas’s criticism of the tiers as both made up and inconsistently applied, one might wonder why the Supreme Court follows this approach.  My explanation is one that relies on a public choice theory of the justices.  The Supreme Court follows this approach because it enhances – perhaps maximizes – its power.

One might question that the Supreme Court’s power is enhanced by the tiers of scrutiny jurisprudence.  After all, the tiers seem to involve rules of a sort that would arguably limit the discretion of the court.  If racial classifications are subject to strict scrutiny, it makes it difficult for the Court to allow them, even the ones that the Court might approve of.  Instead, a Court seeking to maximize its discretion would employ entirely vague standards – or individual edict like judgements – so that it could do as it pleased.

There are, however, two problems with this approach.  The major problem is that this approach would make it difficult for the Supreme Court to control the lower courts.  The Supreme Court cannot review every decision of the lower courts.  In fact, it can only review a small percentage of their decisions, even in the politically salient cases.  The tiers of scrutiny – as well as doctrine generally – is a device the Court uses to control the lower courts.  This seemingly rule like jurisprudence places real limits on the inferior courts.

Another problem with exceedingly vague standards is that it would reduce the legitimacy of the Supreme Court.  If the Court were seen as simply announcing its preferences, that would reduce its legitimacy. If the Court can argue that its decisions follow from more general principles, it can be seen as enforcing a prior jurisprudence.

While this approach has these advantages for the Supreme Court, it also is not all that constraining in the way that the Court implements it.  As Justice Thomas suggested, the Supreme Court applies the approach in an inconsistent way, thereby generally allowing it to reach the results it prefers.

Reader Discussion

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on August 16, 2016 at 10:45:15 am

I have been posting about a civic study through iterative collaboration (with now more than forty-five people) at local library meetings and in private. We just changed the "header" on the blog, which I will print below. Our goal, since the first meeting June 21, 2014 has been to encourage citizens to use the preamble to establish civic morality. A theory for establishing a civic culture based on the indisputable facts of reality emerged.

The Supreme Court, like everyone else with political power does not want to comport with the indisputable facts of reality, and that is the point of your essay, IMO. Your essay demands reform.

Second, I think it is significant that this revision of the header comes after two events in 2016. First, racial unrest after violent police resistance by a gun carrying felon in Baton Rouge, acclaimed because it did not result in even one arrest for violence to property or persons. Second, the record flooding, which is cresting as I write, and the attendant world-class-exemplary neighborliness. An exemplary civic culture may be emerging in my home town.

Now, for the header, about which comments and moreover iterative collaboration by conservative law professors and lawyers would be appreciated:

Political regimes pretend that the civic preamble to the USA constitution is areligious/secular. Yet regimes use religion to cultivate conflictive, opinion-based laws rather than civic safety and security.

Both directly and indirectly connected citizens, perhaps 65%, may collaborate for real-no-harm private-liberty-with-civic-morality by using the indisputable facts* of reality, keeping religion private.

*The facts are evident in physics: energy, mass and space-time.

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Phil Beaver
on August 16, 2016 at 10:45:59 am

Prof. Rappaport, didn't a law professor named Nagel write a take-down of tiers of scrutiny jurisprudence back in the 80s or 90s?

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djf
on August 16, 2016 at 13:27:24 pm

I say the answer lies behind Door #1 - enhanced power TO enforce ones own preferences!

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gabe
on August 16, 2016 at 14:58:27 pm

No one reads your posts Phil, because everyone who reads this blog regularly knows you are coo-coo for Cocoa Puffs. Everyone else finds out quickly.

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Scott Amorian
on August 16, 2016 at 17:00:50 pm

The generations before ours neglected the preamble for their reasons, leaving it to our generation to use the preamble and perhaps establish a civic culture. Owning factional religions, a USA option is to establish civic morality using the indisputable facts of reality.

Those who think those notions are crazy have the opportunity to offer better ideas.

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Phil Beaver
on August 16, 2016 at 17:56:39 pm

If the Court were seen as simply announcing its preferences, that would reduce its legitimacy. If the Court can argue that its decisions follow from more general principles, it can be seen as enforcing a prior jurisprudence.

While this approach has these advantages for the Supreme Court, it also is not all that constraining in the way that the Court implements it. As Justice Thomas suggested, the Supreme Court applies the approach in an inconsistent way, thereby generally allowing it to reach the results it prefers.

Yes, judges like to cloak their exercises of raw power by writing decisions as if their conclusions were purely the result of a mechanical function of following instructions laid down by others. I’ll not gainsay this part of Rappaport’s thesis. I’ll merely (again) observe that the Legal Crits made this exact argument about all judicial doctrines back in the 1980s. Where have the conservative judicial analysts been all this time?

And I’ll also observe (for the benefit of people who have never had the pleasure of drafting decisions) that decisions rendered in the best of faith will also follow this pattern. Thus the Restatement of Torts states general principles of law–say, a person has no duty to rescue others—along with exceptions to the general principle—say, a person who has created a hazard has a duty to aid those imperiled by the hazard. Where a court rules that the defendant has no duty to aid someone, the court will likely declare the first part of the rule: No general duty to aid. It is only when the court finds that an exception applies that the court will even acknowledge that exceptions exist.

And that’s perfectly reasonable. Otherwise, ever tort case would have to include a description of every doctrine and every exception; basically, you’d have to staple a copy of the Restatement of Torts to every decision. Yet the net result is that only sophisticated parties will be able to read a judicial decision and realize how much power the court wields in deciding whether to acknowledge the existence of exceptions to general rules.

- Thus, an air traffic controller warns a pilot about inclement weather, but then authorizes the pilot to take off, and the storm causes the pilot to crash. Did the air traffic controller, by authorizing the take-off, create a hazard that entailed a duty to correct? Courts disagree.

- A boss keeps workers late at work. As the workers go home, one of them falls asleep at the wheel and crashes. Did the boss create a hazard that warranted a duty to correct? Courts disagree.

- A building contractor fails to secure his temporary buildings, contrary to law, and someone is later assaulted in those buildings. Did the failure to secure the buildings create a hazard that warranted a duty to correct? Courts disagree.

In all these cases, courts will write their decision as if it were purely a matter of applying some principle. They rarely acknowledge that the outcome of the cases is utterly governed by the judge’s decision about which principle to choose to apply. Whatever decision they render will seem “principled” to anyone reading the decision.

As far as I can tell, this problem is intractable. In short, judges cannot avoid exercising judgment.

[T]his approach would make it difficult for the Supreme Court to control the lower courts. The Supreme Court cannot review every decision of the lower courts. In fact, it can only review a small percentage of their decisions, even in the politically salient cases. The tiers of scrutiny – as well as doctrine generally – is a device the Court uses to control the lower courts. This seemingly rule like jurisprudence places real limits on the inferior courts.

This argument flatly contradicts the prior one. If the Supreme Court’s statements of doctrine really were that clear, then the Supreme Court justices would find themselves constrained as well. But doctrine is ever-flexible. Thus subordinate courts will be able to apply Supreme Court doctrines to render pretty much any decision you like. The high court can then reverse those decisions and chastise those lower courts—but the high court can only take on so many cases (and they seem to take on fewer all the time). So for most purposes, lower courts are free to innovate as they will, subject only to the threat that some higher court will accept the burden of reversing them.

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nobody.really

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