The New Scrutiny
77 Pages Posted: 17 Nov 2007
For years, lawyers and law professors could give an abbreviated but accurate description of judicial administration of the Constitution in stating that when constitutional values come to court, judicial scrutiny on their behalf generally takes one of two forms, mere rationality review or heightened scrutiny. Like many models, this one glossed a considerably grainier reality, but overall it captured Supreme Court decisions very well. This model, called here the old scrutiny, still has countless users and proponents, but it no longer describes American constitutional law as it has been stated and practiced by a majority of the Rehnquist Court. This Article will explore the reasons and methods of the Justices who make up this new majority, and the narrative of constitutional history they have produced that is calculated to legitimate the legal transformation they are leading.
Part I of the Article explains that the old scrutiny fails to comfortably describe the most important new decisions, doctrines, and debates of the Rehnquist Court because in disciplined fashion, the new majority has been purging the old scrutiny, overruling or displacing the precedents that symbolized its commitments and methods and installing in their stead decisions that reflect a reordered hierarchy of constitutional values. Part II of the Article explains that the resulting jurisprudence is not a patternless passel of opinions that share in common only their disenchantment with the old scrutiny's objectives and manners. Rather, a new scrutiny is emerging with a logic and structure of its own, centering upon a conception of constitutional well-being, here termed measured reasonableness. The structure and texture of this new conception are defined by four distinct techniques which the Article explores, complicating the picture but also lending it comprehensiveness and coherence.
Keywords: Judicial scrutiny, Constitutional law
JEL Classification: K10
Suggested Citation: Suggested Citation