Justice Thomas, dissenting in Whole Woman’s Health v. Hellerstedt (2016)
III. The majority’s furtive reconfiguration of the standard of scrutiny applicable to abortion restrictions also points to a deeper problem. The undue-burden standard is just one variant of the Court’s tiers-of-scrutiny approach to constitutional adjudication. And the label the Court affixes to its level of scrutiny in assessing whether the government can restrict a given right–be it ‘rational basis,‘ intermediate, strict, or something else–is increasingly a meaningless formalism. As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat.
Though the tiers of scrutiny have become a ubiquitous feature of constitutional law, they are of recent vintage. Only in the 1960’s did the Court begin in earnest to speak of “strict scrutiny” versus reviewing legislation for mere rationality, and to develop the contours of these tests. See Fallon, Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267 (2007). In short order, the Court adopted strict scrutiny as the standard for reviewing everything from race-based classifications under the Equal Protection Clause to restrictions on constitutionally protected speech., then applied strict scrutiny to a purportedly “fundamental” substantive due process right for the first time. [Roe v. Wade]; accord, Casey, supra, at 871 (plurality opinion) (noting that post-Roe cases interpreted Roe to demand “strict scrutiny”). Then the tiers of scrutiny proliferated into ever more gradations. See, e.g., Craig v. Boren, 429 U. S. x (1976) (intermediate scrutiny for sex-based classifications); Lawrence v. Texas, 539 U. S. 558 (2003) (O’Connor, J., concurring in judgment) (“a more searching form of rational basis review” applies to laws reflecting “a desire to harm a politically unpopular group”); Buckley v. Valeo, (1976) (per curiam) (applying “closest scrutiny” to campaign-finance contribution limits). Casey‘s undue-burden test added yet another right-specific test on the spectrum between rational-basis and strict-scrutiny review.
The illegitimacy of using “made-up tests” to “displace longstanding national traditions as the primary determinant of what the Constitution means” has long been apparent. United States v. Virginia, 518 U. S. 515 (1996) (Scalia, J., dissenting). The Constitution does not prescribe tiers of scrutiny. The three basic tiers—“rational basis,” intermediate, and strict scrutiny—“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.” Id.
But the problem now goes beyond that. If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result. This Term, it is easier for a State to survive strict scrutiny despite discriminating on the basis of race in college admissions than it is for the same State to regulate how abortion doctors and clinics operate under the putatively less stringent undue-burden test. All the State apparently needs to show to survive strict scrutiny is a list of aspirational educational goals (such as the “cultivat[ion of] a set of leaders with legitimacy in the eyes of the citizenry”) and a “reasoned, principled explanation” for why it is pursuing them–then this Court defers. Fisher v. University of Tex. at Austin (2016). Yet [here] the same State gets no deference under the undue-burden test, despite producing evidence that abortion safety, one rationale for Texas’ law, is medically debated. Likewise, it is now easier for the government to restrict judicial candidates’ campaign speech than for the Government to define marriage–even though the former is subject to strict scrutiny and the latter was supposedly subject to some form of rational-basis review. Compare Williams-Yulee v. Florida Bar, 575 U. S. ___ (2015), with United States v. Windsor, 570 U. S. ___ (2013).
These more recent decisions reflect the Court’s tendency to relax purportedly higher standards of review for less-preferred rights. E.g.,Nixon v. Shrink Missouri Government PAC, 528 U. S. 377 (2000) (Thomas, J., dissenting) (“The Court makes no effort to justify its deviation from the tests we traditionally employ in free speech cases” to review caps on political contributions). Meanwhile, the Court 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, McGowan v. Maryland (1961)–with formidable toughness. E.g., Lawrence.
These labels now mean little. Whatever the Court claims to be doing, in practice it is treating its “doctrine referring to tiers of scrutiny as guidelines informing our approach to the case at hand, not tests to be mechanically applied.” Williams-Yulee, supra (Breyer, J., concurring). The Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case.
- It is tempting to identify the Court’s invention of a constitutional right to abortion in Roe v. Wade as the tipping point that transformed third-party standing doctrine and the tiers of scrutiny into an unworkable morass of special exceptions and arbitrary applications. But those roots run deeper, to the very notion that some constitutional rights demand preferential treatment. During the Lochner era, the Court considered the right to contract and other economic liberties to be fundamental requirements of due process of law. See Lochner v. New York (1905). The Court in 1937 repudiated Lochner‘s foundations. See West Coast Hotel Co. v. Parrish (1937). But the Court then created a new taxonomy of preferred rights.
In 1938, seven Justices heard a constitutional challenge to a federal ban on shipping adulterated milk in interstate commerce. Without economic substantive due process, the ban clearly invaded no constitutional right. See United States v. Carolene Products Co. (1938). Within Justice Stone’s opinion for the Court, however, was a footnote that just three other Justices joined–the famous Carolene Products Footnote 4. See Lusky, Footnote Redux: A Carolene Products Reminiscence, 82 Colum. L. Rev. 1093, 1097 (1982). The footnote’s first paragraph suggested that the presumption of constitutionality that ordinarily attaches to legislation might be ‘narrower . . . when legislation appears on its face to be within a specific prohibition of the Constitution.‘ Its second paragraph appeared to question ‘whether legislation which restricts those political processes, which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the [14th] Amendment than are most other types of legislation.‘ And its third and most familiar paragraph raised the question ‘whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. ‘
Though the footnote was pure dicta, the Court seized upon it to justify its special treatment of certain personal liberties like the First Amendment and the right against discrimination on the basis of race–but also rights not enumerated in the Constitution. As the Court identified which rights deserved special protection, it developed the tiers of scrutiny as part of its equal protection (and, later, due process) jurisprudence as a way to demand extra justifications for encroachments on these rights. See Fallon, 54 UCLA L. Rev., at 1270-1273, 1281-1285. And, having created a new category of fundamental rights, the Court loosened the reins to recognize even putative rights like abortion, see Roe, which hardly implicate ‘discrete and insular minorities.’
The Court also seized upon the rationale of the Carolene Products footnote to justify exceptions to third-party standing doctrine. The Court suggested that it was tilting the analysis to favor rights involving actual or perceived minorities–then seemingly counted the right to contraception as such a right. According to the Court, what matters is the ‘relationship between one who acted to protect the rights of a minority and the minority itself’–which, the Court suggested, includes the relationship ‘between an advocate of the rights of persons to obtain contraceptives and those desirous of doing so.’ Eisenstadt v. Baird (1972) (citing Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L. J. 599, 631 (1962)).
Eighty years on, the Court has come full circle. The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some constitutional rights are more equal than others. A plaintiff either possesses the constitutional right he is asserting, or not–and if not, the judiciary has no business creating ad hoc exceptions so that others can assert rights that seem especially important to vindicate. A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment. Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.