Standard of Review

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Some constitutional limitations on government are readily susceptible to "interpretation," in the sense of definition and categorization. Once a court categorizes a law as a bill of attainder, for example, it holds the law invalid. Other limitations, however, are expressed in terms that make this sort of interpretation awkward: the freedom of speech, the equal protection of the laws, due process of law. The judicial task in enforcing these open-ended limitations implies an inquiry into the justifications asserted by government for restricting liberty or denying equal treatment. The term "standards of review," in common use since the late 1960s, denotes various degrees of judicial deference to legislative judgments concerning these justifications.

The idea that there might be more than one standard of review was explicitly suggested in Justice harlan fiske stone's opinion for the Supreme Court in united states v. carolene products co. (1938). Confirming a retreat from the judicial activism that had invalidated a significant number of economic regulations over the preceding four decades, Stone concluded that such a law would be valid if the legislature's purpose were legitimate and if the law could rationally be seen as related to that purpose. Stone added, however, that this permissive rational basis standard might not be appropriate for reviewing laws challenged under certain specific prohibitions of the bill of rights, or laws restricting the political process, or laws directed at discrete and insular minorities. Such cases, Stone suggested, might call for a diminished presumption of constitutionality, a "more exacting judicial scrutiny."

The warren court embraced this double standard in several doctrinal areas, most notably in equal protection cases. The permissive rational basis standard continued to govern review of economic regulations, but strict scrutiny was given to laws discriminating against the exercise of fundamental interests such as voting or marriage and to laws employing suspect classifications such as race. The strict scrutiny standard amounts to an inversion of the presumption of constitutionality: the state must justify its imposition of a racial inequality, for example, by showing that the law is necessary to achieve a compelling state interest. Today active judicial review of both the importance of legislative purposes and the necessity of legislative means is employed not only in some types of equal protection cases but also in fields such as the freedom of speech and religious liberty. It has even attended the rebirth of substantive due process.

Inevitably, however, cracks appeared in this two-tier system of standards of review. The Court used the language of "rational basis" to strike down some laws, and in cases involving sex discrimination it explicitly adopted an intermediate standard for reviewing both legislative ends and means: discrimination based on sex is invalid unless it serves an "important" governmental purpose and is "substantially related" to that purpose. A similar intermediate standard is now part of the required analysis of governmental regulations of commercial speech. In practical effect, the Court has created a "sliding scale" of review, varying the intensity of judicial scrutiny of legislation in proportion to the importance of the interests invaded and the likelihood of legislative prejudice against the persons disadvantaged. The process, in other words, is interest-balancing, pure and simple. Justice william h. rehnquist, writing for the Court in rostker v. goldberg (1981), remarked accurately that the Court's various levels of scrutiny "may all too readily become facile abstractions used to justify a result"—a proposition well illustrated by the Rostker opinion itself.

Kenneth L. Karst


Gunther, Gerald 1972 The Supreme Court, 1971 Term—Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection. Harvard Law Review 86:1–48.

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Standard of Review

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