Medium Rare Scrutiny

By Paulsen, Michael Stokes | Constitutional Commentary, Winter 1998 | Go to article overview

Medium Rare Scrutiny


Paulsen, Michael Stokes, Constitutional Commentary


Ah, Minnesota in the summertime! A short but precious interlude: time for grilling meat on the barbecue, enjoying the outdoors, dodging the mosquitoes, and reading the end-of-the-Term Supreme Court decisions. I received a new Weber grill for Father's Day. (Charcoal, not push-button gas; I am a traditional conservative.) I've mastered the new grill, but not the new Supreme Court cases. Every year I remain perplexed by the Supreme Court's "tiers of scrutiny" in various First Amendment, Equal Protection, and other contexts. To put it bluntly, I just don't get it. I've never found the levels of scrutiny anywhere in the words of the Constitution, and the Court's analysis strikes me as just so much gibberish. It makes my eyes glaze over; I imagine it strikes first- and second-year law students the same way.

To make matters worse, the levels of scrutiny and doctrinal tests seem to be proliferating, as a kind of excessive product-differentiation has made it even harder to keep up. I think I've identified about four different kinds of "intermediate scrutiny"--the "conventional" 1970's gender discrimination kind;(1) the commercial speech kind(s);(2) the new United States v. Virginia(3)-style superduperintermediate scrutiny kind; and the Madsen-style, "intermediate-lite" kind.(4) Just when I think I have it mastered, something like Turner Broadcasting(5) comes along and I have to rethink my categories. Commercial speech keeps changing on me, too. And that's not even counting the latest in "undue burden" abortion jurisprudence, which seems to be some form of intermediate scrutiny, too.(6)

I've never been quite sure where these different standards come from, or why the differences among them are justifiable, other than to justify different results on the basis of the justices' preferences. But then the answer came to me, as I put the steaks on my new grill.

"How would you like your steak prepared today?" I asked my family or guests in faux-gourmet style, indulging the pretense that I really have any control over how thoroughly burned or tepidly raw the Coal Gods will render the overpriced, politically-incorrect slabs of meat I have placed on the grill or (even if I could exercise some modicum of control) that such standards as "medium" or "medium rare" correspond to any objective level of doneness. But I feel that courtesy requires me to at least ask about folks' tastes in this regard.

And then it hit me. It's all a matter of taste. How would you like your First Amendment prepared today? Would you like your Equal Protection Clause, as applied to this particular animal, to singe the statute to a crisp, or would you prefer just to walk the cow through the kitchen? What's your preferred substantive due process marinade? Although an imprecise art, steak-grilling is a rock-hard science compared to constitutional law tier-defining. What's more, its categories are much more familiar and accessible to common understanding--a worthy aspiration for law, one would think--and much more revealing of the actual nature of the endeavor.

Accordingly, I hereby propose a new taxonomy to replace the inscrutable categories of "strict," "intermediate," and "rational basis" scrutiny and everything in between: a simple continuum from very rare (low, deferential scrutiny) to well-done ("strict in theory and fatal in fact"), with whatever arbitrary modifying word you prefer to indicate more (or less) precisely any of the gradations in between:

"Rare Scrutiny" would replace "rational basis," which sometimes means essentially no judicial heat at all. I've always thought this should be called "irrational basis scrutiny" anyway--i.e., only a crazy person would have come up with this statute (with sanity defined pretty generously, by virtue of the increasingly wild range of things that federal judges and law professors say these days without being locked up).(7)

Of course, even "rare" has a range of meaning. …

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