Justifying the Supreme Court's Standards of Review

Abstract

In Whole Woman’s Health v. Hellerstedt, Justice Thomas criticized existing Supreme Court doctrine regarding the “tiers of scrutiny,” quoting a passage from an earlier Justice Scalia dissent that the “three basic tiers – ‘rational basis,’ intermediate, and strict scrutiny – ‘are no more scientific than their names suggests, 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.’” 136 S. Ct. 2292, 2327 (2016), quoting United States v. Virginia, 518 U.S. 515, 567 (1996) (Scalia, J., dissenting). Justice Thomas added, “But the problem now goes beyond that. If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result. . . . [M[ore recent decisions reflect the Court’s tendency to relax purportedly higher standards of review for less-preferred rights. . . . Meanwhile, the Court selectively applies rational-basis review – under which the question is supposed to be whether ‘any state of facts reasonably may be conceived to justify’ the law – with formidable toughness.” Id., quoting McGowen v. Maryland, 366 U.S. 420, 426 (1961). Despite these concerns, careful attention to the Court’s decisions reveals a predictable and principled structure to the Court’s existing standards of review. Justice Thomas’ criticisms stated in points and above on the “scientific nature” of the standards of review and possible selective application of “rational basis review” are addressed in a separate article entitled, “The Structure of Rational Basis and Reasonableness Review.” Justice Thomas’ criticism in point regarding selective application of the “higher standards of review” are addressed into two related articles, “The Structure of Intermediate Review” and “The Structure of Strict Scrutiny Review.” All of these articles are now posted on SSRN and available at http://libguides.stcl.edu/kelsomaterials. Justice Thomas’ criticism in point about the malleability in selecting which standard of review to adopt is addressed in this article entitled, “Justifying the Supreme Court’s Standards of Review.” This article responds to Justice Thomas’ concerns about the manipulability of which standard to apply by discussing: (1) a principled approach to when the Court should apply a rational basis, intermediate review, or strict scrutiny review; and (2) why the Court’s current approach is better than competing alternatives. In pursuit of objective (1), Part II of this article summarizes the existing standards of review. Part III then discussed the various factors the Supreme Court uses to determine whether to apply a particular standard of review. Part IV provides an analysis of why the Court’s current decision-making regarding what standard of review to apply is sound and defensible as reflecting reasoned decision-making. In pursuit of objective (2), Part V discusses competing alternatives to the current standards of review approach, such as a “sliding-scale” approach or a single-standard “proportionality” approach, and why, in general, in the American constitutional context the current standards of review approach is better than these alternatives. Part VI then discusses how the Court’s current approach would be improved by more explicit acknowledgement of a background commitment to reasoned decision-making. Part VII discusses why that commitment to reasoned decision-making supports interpretation based on the original meaning of the concepts used in the Constitution, and such interpretation reflects the original intent of the framers and ratifiers. Part VIII provides a brief conclusion.