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Historicizing Judicial Scrutiny

G. Edward White, University of Virginia School of Law

Abstract

The practice of judicial scrutiny of legislation and executive action challenged on constitutional or other legal grounds has long been understood to be a necessary corollary of the principle of judicial review. But judicial scrutiny stands in a curious position in contemporary constitutional scholarship. On the one hand anyone who teaches or writes about constitutional law recognizes that, at least since the 1930s, the decision by a majority of Supreme Court justices to apply a particular level of scrutiny to constitutionally challenged actions of other branches is an essential first step in the Court’s analysis of the constitutionality of that legislation, and often the crucial factor driving that analysis. Moreover, constitutional law specialists recognize that the scrutiny level decision, once made, brings a set of doctrinal baggage with it. Levels of scrutiny come with their own doctrinal tests for evaluating legislation; those tests come with their own refinements. The scrutiny level decision, in sum, spawns a complex web of formulas and judicial guidelines for their application that takes up a lot of the doctrinal space of modern constitutional law. It seems not much of an overstatement to say that the constitutional jurisprudence of the Supreme Court for the last sixty-odd years has been consistently preoccupied with the level of judicial scrutiny to be afforded constitutionally challenged actions by other branches of government.

Nonetheless there has been very little discussion among commentators, and most of that attenuated, about how or why the Court’s scrutiny levels jurisprudence emerged. There has been ample discussion of particular scrutiny level choices Court majorities have made, and some efforts to instruct the Court about the appropriate level of scrutiny to be applied to a given line of cases. There has been widespread recognition that the Court’s scrutiny levels have changed over time, both in their formulation and in their application. There has been abundant criticism of the coherence of the levels, especially as they have been applied to cases, and recently several commentators have suggested that the Court’s established scrutiny levels typology, which features at least three and possibly as many as six levels of scrutiny, is on the verge of degeneration. But there have been very few efforts to analyze the scrutiny levels practice as a historical phenomenon. This seems all the more striking because for a time span of 150 years in which the Court rendered numerous decisions reviewing the acts of legislatures on constitutional grounds, it made a quite different set of scrutiny level choices from the sets it has employed since the 1930s.

This article represents an effort to historicize the Court’s scrutiny levels jurisprudence. The article first sketches a historical account of the Court’s response to constitutionally

challenged decisions of other branches from Marbury to Carolene Products. It then explores the emergence of the Court’s modern approach to judicial scrutiny. In the process the article addresses two related sets of questions.

The first set of questions focuses on the antecedents of the Court’s modern scrutiny levels jurisprudence. I attempt to recover the Court’s approach toward challenged decisions of other branches from the early nineteenth century, when its power to review both federal and state statutes which allegedly violated the Constitution was definitely established, to the 1930s, when it initiated what I will be calling bifurcated review, as outlined in Carolene Products, and thus began to develop a constitutional jurisprudence of scrutiny levels. I ask how the Court’s pre-Carolene Products approach to other branch decisions should be understood, and why that approach came under strain in the early twentieth century.

The next set of questions is connected to the collapse of the Court’s initial approach to challenged decisions of other branches and its replacement with an approach, explicitly set forth in Chief Justice Stone’s “footnote four” in United States v. Carolene Products but implicitly adopted in some earlier cases in the 1930s, that sought to establish two categories of constitutionally challenged legislation which would invoke two different levels of judicial scrutiny. I ask how and why that approach emerged.

The article eventually takes up the current state of judicial scrutiny in constitutional jurisprudence. Some of the commentators noted above have suggested that the approach the Court has employed since Carolene Products, now reflected in multi-tiered scrutiny levels with attendant doctrinal baggage, is in a state of collapse. The history of judicial scrutiny suggests that the disintegration of the Court’s scrutiny levels jurisprudence may be inevitable as the weight of its doctrinal baggage increases and contemporary actors become further removed from the intellectual and social conditions that made a scrutiny-triggered approach to judicial review appear attractive. To understand the future of judicial scrutiny of constitutionally challenged legislation, the article concludes, one needs to understand that history.

Subject Area

Legal History, Public Law and Legal Theory

Recommended Citation

G. Edward White, "Historicizing Judicial Scrutiny" (June 2005). University of Virginia Legal Working Paper Series. University of Virginia Public Law and Legal Theory Working Paper Series. Working Paper 31.
http://law.bepress.com/uvalwps/uva_publiclaw/art31

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