Tiers of Scrutiny in a Hierarchical Judiciary

Abstract

This Essay, which is part of a symposium entitled “Is the Rational Basis Test Unconstitutional?,” provides a partial response to scholars and jurists, who criticize the current standards of scrutiny as overly rigid and lacking any historical foundation. I argue that the Supreme Court had good reason to create (somewhat rigid) standards of scrutiny beginning in the early-to-mid twentieth century. Around that time, the Court faced a caseload crisis; it could no longer review every federal question case from the inferior federal and state courts. Accordingly, in a series of statutes, Congress granted the Court the discretion to choose the cases that it hears. In order to provide meaningful leadership in this discretionary review system, the modern Supreme Court cannot correct lower court errors on a case-by-case basis. Instead, the Court must articulate broad doctrines that guide the lower courts in the many cases that it cannot review. The tiers of scrutiny, like other broad decision rules, enable the Supreme Court to provide guidance to the lower federal and state courts on the content of federal law — and thereby to promote stability and uniformity in the judicial system.

Keywords: tiers of scrutiny, standards of scrutiny, judicial hierarchy, strict scrutiny, rational basis review, Supreme Court