The New Formalism: Requiem for Tiered Scrutiny?

Abstract

A by-product of Lawrence v. Texas and Grutter v. Bollinger is that the rationales employed by the Court contribute to the destabilization of tiered scrutiny. Ever since the New Deal revolution in constitutional law the Court has employed and refined tiered scrutiny to resolve two questions: 1) When should the presumption of validity that attaches to government action be reversed? and 2) How strong must be the proof offered by governments to justify the validity of actions that are presumptively invalid? The considerable superstructure created by courts in the service of this endeavor has become ever more complex and unwieldy, but Lawrence and Grutter suggest that this analytic structure is now subject to new and severe strain.

In striking down Texas's prohibition on private consensual sexual intimacies between adults of the same sex, the Court was unwilling to declare that consensual sex between adults is a fundamental liberty interest, or even that the ability to enter and maintain a consensual intimate relationship with another adult is a fundamental liberty interest. Instead, the Court declared that Texas had no legitimate interest in declaring its vision of morality. This rationale undervalues the very liberty that it purports to protect, undermines a host of laws and practices that represent widely held public values, and renders less coherent the entire enterprise of substantive due process.

In upholding under strict scrutiny the presumptively unconstitutional racially based admissions practices of the University of Michigan Law School, the Court in Grutter exhibited remarkable deference to the judgment of academic administrators and employed an unusually loose form of narrow tailoring. The result of this analytic mode is to call into question the meaning of strict scrutiny and raises questions about the differences between strict and intermediate scrutiny.

Taken together, Lawrence and Grutter suggest that the pigeonhole categories of tiered scrutiny are ill-defined, if not in danger of outright collapse. The Court must necessarily consider alternatives. Possible alternatives include a version of Justice Thurgood Marshall's sliding-scale analysis, a revived and stiffened version of tiered scrutiny, or invention of an entirely new analytical mode.

Keywords: Constitutional law, judicial review, equal protection, due process

JEL Classification: H11, K19, K40