“Legislating from the bench” has been a problem with American courts for at least two generations. It has bedeviled religious and political conservatives, who are confronted with rulings that are effectively constitutional amendments that cannot be changed, and also effectively “ex cathedra” moral pronouncements, which it is held immoral to oppose.
Joel Alicea and John Ohlendorf, attorneys with Cooper & Kirk, and Jud Campbell, Associate Professor of Law at the University of Richmond discussed the Supreme Court’s method of analyzing constitutional law cases using the “tiers of scrutiny” method begun in the mid-twentieth century at the Heritage Foundation on December 3. “Tiers of scrutiny” is basically a means of balancing a claimed constitutional right with contrary interests. The claimed right is given greater or lesser strength depending on what topic is being addressed (e.g., right to free speech, etc.).
John Malcolm, Vice President of the Institute for Constitutional Government at Heritage began the panel, explaining that not all constitutional cases use “tiers of scrutiny” analysis. Primarily they are free speech cases under the First Amendment and equal protection claims under the Fourteenth Amendment. These are of course the areas in which the Supreme Court, starting with the Warren Court in the 1950s and 1960s, greatly expanded the understanding of constitutional rights, in line with a doctrine of personal autonomy. There are three levels: “strict scrutiny,” (the level that applies to race relations), “intermediate scrutiny” (used with claims of sexual discrimination), and “rational basis review” (which is used with economic cases). For strict scrutiny, the mere use of a suspect classification is likely sufficient to invalidate the law (a “compelling government interest” is necessary to overcome suspicion), and most of these laws do not survive. Intermediate scrutiny allows some degree of justification if a suspect category is used, “rational basis” requires only that the law be found a reasonable means for achieving its objective. Laws analyzed at this level of scrutiny generally survive.
Ohlendorf said that the tiers of scrutiny “dominate the conversation about constitutional law.” He believes that the time has come to consider whether or not this analysis is “consistent with our legal traditions and constitutional structure.” Both Ohlendorf and Alicea believe that “it is inconsistent with the original meaning of the Constitution.” It was in fact unknown in the early federal period of Chief Justice John Marshall and Justice Joseph Story. These early justices “tried to discern the boundary lines or the scope of the constitutional provision at issue.” Following this, “textual analysis and conceptual analysis” were used to reach a decision on the constitutionality of a law. Balancing tests, such as that of “compelling government interest” were not used. It was first used in 1963, and developed thereafter as a “political expedient” to reach agreement on the court between activist and strict constructionist justices. Thus, constitutional originalists have good reason for dispensing with tiers of scrutiny analysis, while for non-originalists the tiers are still unsatisfactory because they are “radically indeterminate.” The courts themselves must decide on the level of scrutiny, unless it is based on guidance from a higher court, often deciding by “moral intuition.” He noted that the text of the Constitution gives no guidance for distinguishing between “important” and “trivial” government interests. Today’s court assumes that it has this power.
Alicea said that a problem in dispensing with tiers of scrutiny analysis is that it has become “entrenched” in judicial decisions relating to free speech, equal protection, and in lower court adjudication of the Second Amendment. It cannot easily be discarded. Yet there has never been a good explanation of why the Constitution requires it, and that has been identified by the court as a reason why a precedent may be overruled. Additional reasons the Supreme Court uses for overriding precedent also exist. The fact that tiers of scrutiny analysis provides no objective guidance to judges in either selecting an area of constitutional law for this particular analysis or determining the level of scrutiny are other reasons. If tiers of scrutiny were overruled, Alicea said that existing court decisions using it would still be binding precedent, but for future rulings where precedent is unclear, there would have to be case by case analysis, as was true before the mid-twentieth century.
Campbell’s remarks began by noting that the contemporary understanding of rights is based on developments starting in the mid-twentieth century. These are not precedents that Americans ought to “idolize,” or which should necessarily be retained, be believes. He said that rather than the Supreme Court having moved from categorical analysis (appeal to a right that exists in all cases of that kind) to “balancing” analysis (assessing the relative value of a right in a particular case against other interests), there has been a synthesis of these two kinds of analysis.
Formerly, American jurisprudence recognized rights given in the text of the Constitution, which could not be abridged by “governmental interests.” These rights were derived from English Common Law. On the other hand, it was held that there were “natural rights,” not explicitly mentioned in the Constitution, but assumed by social contract political theory. These were believed to exist for human beings before any government existed, and surrendered to some degree for the sake of a civil society. Consequently, they were indeterminate. Therefore, courts could enforce constitutional rights (understood as found the text of the Constitution) but not natural rights. These were to be balanced in the political arena, by legislatures. It was this second kind of rights that could be called “the public good.”
Campbell then quoted Justice Benjamin Cardozo to indicate the criticism made of this original understanding of rights. Cardozo said that “when judges are called upon to say how far existing rules are to be extended or restricted, they must let the welfare of the society fix the path, its direction, and its distance.” Progressives of the late nineteenth and early twentieth centuries also began urging that courts give greater deference to legislatures in enacting laws for economic and social improvement, while insisting on a more expansive understanding of freedom of expression.
These demands began to be met in the late 1930s, when appointments of President Franklin D. Roosevelt came on to the court, and ultimately gained control of it. Another Progressive concern was restricting “laws that disfavor discrete and insular minorities.” The Progressive synthesis of the two original doctrines of rights is the “tiers of scrutiny” method of analysis. Campbell said it is neither “highly deferential of legislative judgments [as the old “natural law” doctrine was] nor categorical [as the old constitutional enshrinement of common law was].” This synthesis gives courts a greater power to police the substance of laws according to their own understanding of the public good.
Campbell fears, however, that abandoning tiers of scrutiny analysis and return to the earlier categorical analysis would “push us even further away from our constitutional history.” It would give the government “vastly” greater power to regulate freedom of expression, since much communication does not fall under the original meaning of free speech or a free press. Similarly, he said “equal protection” would mean “the protection of law,” but not protection in “the conferral of public benefit.” He concluded that as a result of the twentieth century constitutional revolution, “our understanding of rights is fundamentally different than it used to be.”
Malcolm observed that tiers of scrutiny may have a firmer rooting in constitutional history than was suggested. Nineteenth century courts reviewed laws to look for “corrupt motives,” and tiers of scrutiny gives the courts opportunity to give greater attention to pretexts more likely to be used (racial) than those less likely (economic). Ohlendorf responded that tiers of scrutiny was not used until well into the twentieth century, and then only for a small part of the Constitution. Alicea doubted that an originalist understanding of free speech would lead to a radically reduced doctrine of freedom of expression. He also suggested that an original understanding of equal protection would leave other constitutional provisions available to accomplish many of the same purposes.
Malcolm asked if determining the level of scrutiny to be used does not result in judges “masking political beliefs and political preferences under the guise of constitutional adjudication.” Campbell replied that the purpose of tiers of scrutiny analysis was originally to combat the illicit motives of legislatures. He said that there must be judgment exercised by judges in making doctrines found in the text of the Constitution apply to new situations, such as electronic communications. Removing discretion for judges in determining how the text of the Constitution applies would greatly reduce “judicial review of rights claims.” Ohlendorf claimed, however, that original understandings of constitutional rights can address changed conditions in our day. He also said that the choice of intermediate scrutiny by lower courts to uphold gun control laws against the Second Amendment shows judgement “purely motivated by the judge’s policy preferences, in many cases.” Alicea pointed to statements by Supreme Court justices noting that tiers of scrutiny is simply a method of analysis the court has adopted, rather than being explicitly provided for in the Constitution.
This writer would observe that the use of tiers of scrutiny seems to involve not only judicial review, but the expectation that the courts will be closely inspecting law with a view to invalidating it. By establishing the standards of scrutiny, defining them, and choosing what parts of the Constitution they will be applied to, the court can focus on areas of law it expects to invalidate. In this way, the court can focus on overruling public opinion and elected legislatures where the opinion of the justices disagrees with public opinion.
The problem for Christians in our day and for some time has been that changes in the understanding of the public good have been incompatible with Christian doctrine and practice. In particular, the old civil religion, which amounted to a least common denominator Protestantism, was held inadequate for the modern world, and sexual morality was held to be oppressive. A just morality is supposed to be based on mutual consent, not marriage. With the synthesis of a changed understanding of the public good and the old constitutional rights in the text of the Constitution, decisions hostile to traditional Christian faith and morals have become, in effect, constitutional amendments, which the body politic is, to all intents and purposes, unable to change.
Added to this problem is that legality tends to be equated with morality by many people. This is compounded by the fact that the Supreme Court has cast its expansion of rights based on personal autonomy in moral terms. We may struggle to change the situation by constitutional amendment, appointment of originalist judges, and litigation. Christians and conservatives may or may not be successful over time. But the law of the state is not our ultimate teacher. Our ultimate teacher is God in his Word.