Note on levels of scrutiny

You probably remember the notion of levels of scrutiny from your original Constitutional Law class. But, just in case you're a little rusty, here's a refresher and a little bit of theory.

One useful way to think of a level of scrutiny is a way of expressing an overall balancing test, where what we're balancing is the importance of what the government is trying to achieve by the alleged rights violation or classification (hereafter "government action") and necessity of the government action to the government's ends against the perniciousness of the kind of government action under consideration. Then the choice between the three levels of scrutiny, strict scrutiny, intermediate scrutiny, or rational basis scrutiny, is the doctrinal way of capturing the individual interest and perniciousness of the kind of government action. Race discrimination is really dangerous and nasty, so we're going to apply strict scrutiny to it; violating a fundamental right like the right to vote, ditto. Regulating commercial speech (i.e., advertisement) under the 1st Amendment is probably less dangerous and nasty than regulating speech for its political content, so it only gets intermediate scrutiny, and so forth.

**Strict Scrutiny** is what the Court applies to fundamental rights violations (at least formally, in name---in practice it often applies something else) and suspect classifications under the Equal Protection Clause. 

When we apply strict scrutiny, we have to ask two questions. First, what's the government interest at stake? To satisfy strict scrutiny, it has to be "compelling." 

How do we know what's a compelling interest? Well, there are some obvious ones --- national security, for example. But beyond that, a compelling interest is kind of what five justices think is a compelling interest---we'll think about this at quite some depth. One important subtlety is that the government doesn't get to make up a compelling interest after the fact: there has to be some reason to think that the compelling interest or interests that justify the classification were actually behind the classification in the first place.

Second, is the government action "narrowly tailored" to achieve that compelling interest? Sometimes narrow tailoring is also described as "the least restrictive means," but the two formulations basically mean the same thing: the government action has to be a very close match to the compelling interest. That has two implications: first, the government can't engage in any more rights-impinging or classification than is necessary to serve the compelling interest. If there's a way to achieve the compelling interest without impinging on the given fundamental right or using the suspect classification, or with less impinging on rights or classification, then the government has to take it. Second, the government action has to actually serve the compelling interest. In other words, it has to be effective.

Importantly, the burden is on the government to show all of this. So typically, strict scrutiny means its very probable that the government will lose.

Strict scrutiny applies, as I have said, at least formally to all "fundamental rights," as well as to "suspect classifications" under Equal Protection (which we'll consider down the road---it's mostly race).

**Intermediate Scrutiny**

Like strict scrutiny, the burden of proof is on the government, and like strict scrutiny, you can't use after-the-fact invented justifications.

The big difference, however, is in the actual level of scrutiny applied. Where for strict scrutiny, the government needs a **compelling** interest, in intermediate scrutiny the government merely needs an **important** interest. And where for strict scrutiny, the government action has to be **narrowly tailored** to the interest, in intermediate scrutiny the government action must only be **substantially related** to the interest.

What does that mean in practice? Well, the difference between important interests and compelling interests isn't particularly clear. Every compelling interest presumably is also an important interest, but not every important interest need be a compelling one. But we can't just list things that important interests but not compelling interests. 

For the most part, intermediate scrutiny comes up when we get to sex/gender discrimination under the Equal Protection Clause. It also applies to some First Amendment issues which are beyond the scope of this course. 

**Rational Basis**

As we know by now, rational basis is the default rule for if we don't have some other standard of review that applies. And rational basis is *extremely deferential*. The court will uphold a government action under rational basis if it's **rationally related** to a **legitimate** government interest.

Rational basis is easy. Basically, the government almost always wins. First, the government merely needs a "legitimate" interest, which can be something like administrative convenience or saving a little bit of money.  

Moreover, the burden of proof and treatment of after-acquired (cooked up for litigation) reasons shifts when we get to rational basis. As you know, with both strict scrutiny and intermediate scrutiny, the government has the burden of showing its challenged conduct meets the given interest, and it cannot rely on interests cooked up after the fact for the purposes of litigation; rather, the interests it appeals to have to be the interests that were actually under consideration (in some meaningful sense, given the well-known problems of aggregated legislative motivations and such) when the legislation was enacted (or policy was chosen, executive action was decided upon, etc.).

Both of those flip with rational basis. Now the party challenging the law has to prove that the government's action isn't rationally related to a legitimate interest, and this can include any interest that can justify the action, regardless of whether it had anything to do with why the government action was enacted in the first place.

So how can the government lose a rational basis case? Well, for the most part, it has to be either acting totally arbitrarily or irrationally,^[See, e.g., the claim at issue in *Village of Willowbrook v. Olech* where a city, allegedly for no reason, demanded a water line easement on plaintiff's property twice as large as everyone else's.] or, arguably, it has to get into a "rational basis with bite" situation, which we'll see with the gay rights cases, where arguably the court accused the government of a kind of animus toward gay people. 

Rational basis is the default rule, in the post-Lochner era, for rights claims that are not classified as fundamental.

**Is strict scrutiny really what we get for fundamental rights?**

Remember how I said that you get strict scrutiny when the government infringes a fundamental right? Well, that's not true. Actually, strict scrutiny is kind of the default invocation, but lots of the time the Court applies lots of different tests. An easy example is in the First Amendment---depending on the kind of speech and the kind of restriction, you might get intermediate scrutiny, or strict scrutiny, or all kinds of other weird stuff. And that's so even though we say that the speech rights enumerated in the First Amendment are fundamental rights within the meaning of this area of jurisprudence. Same goes for abortion: Roe v. Wade articulated a complex test that was kind of derived from strict scrutiny (sorta---we'll talk about it), but then that got changed in Planned Parenthood v. Casey to an "undue burden" test that has nothing visible to do with strict scrutiny.

So, again, we recite this formulation, and we test it (and I'm going to test it), "fundamental rights get strict scrutiny," but you really should only understand it as a rough rule of thumb, and be aware that within fundamental rights jurisprudence is a lot more complicated, and there are lots of little sub-doctrines which we'll explore. The unenumerated fundamental rights are more consistently strict scrutiny than the enumerated fundamental rights, but even there, there's a lot of wiggle. I want to recommend a very good article on this subject (and it's only a dozen pages long): Adam Winkler, Fundamentally Wrong about Fundamental Rights, 23 Constitutional Commentary 277 (2006) describes lots of places where we don't actually do strict scrutiny with fundamental rights. You really ought to read it.^[And by the way, about things you'll be tested on: you'll be expected to both know the "fundamental rights get strict scrutiny" formulation, and to know the numerous exceptions which we'll cover in class.]

Thinking about the First Amendment helps us see the absurdity of the notion of fundamental rights equals strict scrutiny. Let Justice Black be our guide: possibly his most famous quote comes from his concurrence in Smith v. California, 361 U.S. 147 (1959):

> Certainly the First Amendment's language leaves no room for inference that abridgments of speech and press can be made just because they are slight. That Amendment provides, in simple words, that "Congress shall make no law . . . abridging the freedom of speech, or of the press." I read "no law . . . abridging" to mean no law abridging. The First Amendment, which is the supreme law of the land, has thus fixed its own value on freedom of speech and press by putting these freedoms wholly "beyond the reach" of federal power to abridge. No other provision of the Constitution purports to dilute the scope of these unequivocal commands of the First Amendment. Consequently, I do not believe that any federal agencies, including Congress and this Court, have power or authority to subordinate speech and press to what they think are "more important interests." The contrary notion is, in my judgment, court-made not Constitution-made.

Here's the thing. From a pure textual standpoint, isn't Justice Black actually exactly right? "No law" isn't exactly ambiguous! Even strict scrutiny seems like a weird idea in the context of things like the enumerated rights: the Constitution doesn't say "Congress shall make no law ... abridging the freedom of speech unless it's narrowly tailored to a compelling government interest." Nor, for that matter, does it say "Nor shall any state ... deny to any person within its jurisdiction the equal protection of the laws unless it's narrowly tailored to a compelling government interest."

When we think of that logic, which clearly poses serious problems for the application of any level of scrutiny to the enumerated rights (except for stuff like the 4th and 8th amendments which actually write ideas like "unreasonable" and "cruel and unusual" into the text), we might also want to worry that the same problem shows up for the unenumerated rights. If there really is a pre-constitutional right to something, then on what basis does Congress or a state legislature deprive an individual of it? What kind of right is it, ultimately, that can be infringed if the government has a really good reason, and why should the standard for really good reason even formally be the same in all these cases (albeit not necessarily actually)? Certainly the idea of due process, even if it includes enforcing unenumerated rights, doesn't also include some kind of strict scrutiny test. So arguably there's a deeply unprincipled analytic strategy at the heart of this whole body of law. But it's what we got.