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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 [1] no more scientific than their names suggests, and [2] 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). Justice Thomas added, “But the problem now goes beyond that. If our recent cases illustrate anything, it is how easily [3] 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 [4] 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.” Numerous commentators have expressed similar concerns on the standards of review employed by the Court.

Despite these concerns, careful attention to the Court’s decisions reveals a predictable and principled structure to the Court’s existing standards of review. This article is the first of four that make this point.

This article addresses Justice Thomas’ criticisms stated in points [1] and [4] above on the “scientific nature” of the standards of review and possible selective application of “rational basis review.” In responding to Justice Thomas’ point [1] criticism of the lack of the “scientific nature” of the standards of review, Part II of this article discusses the differences between (1) rational basis review, sometimes called “minimum rationality review,” used for review of standard social or economic regulation under the Equal Protection Clause and Due Process Clauses (Fifth and Fourteenth Amendment); (2) a higher level of scrutiny used by the Court under the Due Process Clauses and in many other cases, called in this article “reasonableness balancing”; and (3) the structure of “higher levels” of review, such as (a) intermediate review and (b) strict scrutiny.

Parts III and IV of this article then addresses Justice Thomas’ point [4] criticism about selective application of rational basis review. The argument in Part III is that, despite the argument of Justice Thomas and some commentators to the contrary, in cases involving standard social or economic regulation under the Equal Protection Clause the Supreme Court has been careful since 1937 to use only “minimum rationality review,” not any heightened rational review or rational review with bite. Part IV makes the same argument with respect to the Due Process Clauses. Part V of this article then describes those areas of the law where the Court does use the higher level of “reasonableness balancing” review, also called in this article “second-order reasonableness review.” This review involves cases dealing with less than substantial burdens on unenumerated fundamental rights under the Due Process Clauses, but also involves some cases under the Dormant Commerce Clause, the Contract Clause, cases dealing with excessive punitive damage awards under the Due Process Clauses, and the Takings Clause. This review also involves First Amendment non-viewpoint based regulations of speech in a nonpublic forum and Procedural Due Process analysis. Part VI of the article then addresses the fact that in some “reasonableness balancing” cases the Court has shifted the burden from the challenger to prove the government action is “unreasonable” to requiring the government to prove the action is “reasonable.” Because this shifting of the burden of proof imposes a greater challenge for the government to justify its course of action, this article calls this level of review “third-order reasonableness review,” or “heightened reasonableness balancing.” Finally, Part VII responds to Justice Thomas’ examples in Hellerstedt where he questioned whether the Court has been principled in applying the standards of review.

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