The Structure of Strict Scrutiny 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 about the malleability in selecting which standard of review to adopt is addressed in a separate article entitled, “Justifying the Supreme Court’s Standards of 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 four of these articles are now posted on SSRN and available at http://libguides.stcl.edu/kelsomaterials. This article addresses “The Structure of Strict Scrutiny Review.” Today, there are two versions of strict scrutiny review. There is: (1) “standard” strict scrutiny review used for cases like (a) racial discrimination under the Equal Protection Clause, both in cases involving (i) discrimination against minorities, as in Loving v. Virginia, or in cases of involving (ii) race-based affirmative action, in cases like City of Richmond v. J.A. Croson Co., or (b) content-based regulations of speech in a public forum, in cases like Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board. There is also (2) a “loose” strict scrutiny approach used for cases involving racial redistricting challenges under the Equal Protection Clause in cases like Bush v. Vera. In actual Court decisions, four other kinds of tests have been used, or suggested, by the Court where one of the established versions of strict scrutiny should apply. These four can be viewed as “mutations” of the two kinds of strict scrutiny review proper to apply. These four mutations involve: (1) a “hybrid” kind of intermediate/strict scrutiny review used in cases like Denver Area Educational Telecommunications Consortium v. FCC, which involved regulation of cable television; (2) a “watered-down” kind of strict scrutiny, applied in cases like Fisher v. University of Texas at Austin; (3) suggestion of “extremely limited” possibilities for compelling interests to satisfy strict scrutiny, as in Justice Thomas’ concurrence in Grutter v. Bollinger, a case involving race discrimination under the Equal Protection Clause; and (4) suggestion of a “categorical” approach of unconstitutionally when traditionally strict scrutiny has been applied, such as in Iancu v. Brunetti, a case involving viewpoint discrimination in free speech cases. Part II of this article will discuss the two well-established kinds of strict scrutiny. This discussion will provide detailed treatment of a structured approach to phrasing and applying these two kinds of strict scrutiny tests. Following this discussion, Part III will discuss: (1) the “hybrid” kind of strict scrutiny review. Part IV will address (2) the “watered-down” kind of strict scrutiny review. Part V will discuss (3) the “extremely limited” compelling governmental interests kind of strict scrutiny review. Part VI will discuss (4) adopting a “categorical” approach rather than applying strict scrutiny. Part VII will discuss why the first of these mutated approaches should adopt the loose strict scrutiny of Bush v. Vera, while the last three of these mutations should adopt standard strict scrutiny review. Part VIII will provide a brief conclusion.