Bench Memos

Law & the Courts

‘Against the Tiers of Constitutional Scrutiny’

That’s the title of an outstanding National Affairs essay by Joel Alicea and John D. Ohlendorf. Alicea and Ohlendorf argue that the tiers of scrutiny—strict scrutiny, intermediate scrutiny, and rational-basis review—that have come to dominate so much of what passes for constitutional analysis are illegitimate: They “have no basis in the text or original meaning of the Constitution,” and “they do not withstand critical analysis even on their own terms.”

The authors explain the “curious history” of the tiers of scrutiny, a “revolution in constitutional law [that] happened not for reasons of principle and fidelity to the original meaning of the Constitution” but rather “for reasons of contingency and political expediency.” The Supreme Court (to use their quote of Harvard law professor Richard Fallon) long “conceived its task as marking the conceptual boundaries that defined spheres of state and congressional power on the one hand and of private rights on the other.” The tiers of scrutiny developed only in the mid-20th century “as a means to evade the categorical language of the Free Speech Clause,” and they then morphed into “the Warren Court’s dominant method of muscularly protecting its favored constitutional rights.”

Alicea and Ohlendorf argue that “it is in the very nature of the tiers of scrutiny that they contradict the constitutional provisions in question, by purporting to find those rights ‘outweighed’ by the government’s interest in violating them.” This scrutiny analysis “asks judges to impose on the Constitution a hierarchy of values and interests that—due to their incommensurability—is not objectively justifiable.”

They continue:

But one need not be an originalist to reject the tiers of scrutiny; any good-faith interpreter of the Constitution can—and should—just as readily condemn them. That is because the tiers of scrutiny lack the essential characteristic of any jurisprudential test whose aim is the faithful application of the law: serving as a meaningful guide to legal analysis. Instead, each step of the scrutiny process is marked by indeterminacy and manipulability.

Because the scrutiny analysis depends a judge’s “own subjective assessment of questions that can only be described as quintessentially political,” it “makes the resolution of controversial constitutional questions difficult for the losing side to accept.”

There is a lot more in this rich and thoughtful essay. I agree with the authors that the “Roberts Court would have few accomplishments of greater significance than the repudiation of the tiers of scrutiny.”


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