Bench Memos

The Activism of “Strict Scrutiny”

My friend Carson Holloway has a characteristically thoughtful article at Public Discourse today, digging below the surface of charges and counter-charges of “judicial activism.”  As Holloway notes, much of the problem can be seen in the modern doctrine of “strict scrutiny,” originally invented by the liberal activists of the mid-twentieth century in order to “guide the Court to outcomes they approved on non-constitutional grounds.”  Now, unfortunately, the doctrine is employed by all the justices, not just the liberal activists–as can be seen in the Citizens United case.

Does that mean Citizens United was wrongly decided?  No, not necessarily, says Holloway:

My point is that, even if Citizens United was correctly decided, the use of tests like strict scrutiny, now deeply entrenched in the Court’s jurisprudence, drive the Court into kinds of inquiries that almost inevitably make even the most sincere critics of judicial activism engage in it themselves.

I remember reading the Court’s decision in the Virginia Military Institute case (U.S. v. Virginia) in 1996, and being thrilled to see Justice Scalia criticize the sort of jurisprudence that

regards this Court as free to evaluate everything under the sun by applying one of three tests: “rational basis” scrutiny, intermediate scrutiny, or strict scrutiny. These tests are no more scientific than their names suggest, 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.

. . . And then being crestfallen to see him retreat from this commonsense view, back into the bunker of the Court’s worst habits, in his very next paragraph:

I have no problem with a system of abstract tests such as rational basis, intermediate, and strict scrutiny (though I think we can do better than applying strict scrutiny and intermediate scrutiny whenever we feel like it). . . .

Sigh.  All that was required was to grasp the nettle.