We'll soon be reading cases dealing with the level of scrutiny that the Supreme Court applies when testing legislation and other government rules and acts for constitutionality:
Low level scrutiny is for ordinary social and economic reform regulation. It has been used since the end of the Lochner era, (1905-1937), when the Court, in response to the near rebellion represented by FDR's Court-Packing Plan, announced that it was going out of the Super-legislature business; it would no longer judge the policy choices made by legislative bodies everywhere: Congress, state, and local.
The near rebellion came about because the "Four Horsemen" (of Apocalypse fame) of the "Old Court" kept killing New Deal reform legislation, just as they'd done since 1905 in the Lochner Bakery case. If the Four Horsemen, plus one more vote, didn't like what a legislature had done, they'd declare it unconstitutional on one pretext or another.
This was the activity, by the conservative wing of four or five of the Court that put the original stink on the idea of judicial activism. Today the conservatives apply it to the liberal wing when it seeks to advance or preserve civil liberties. Either way, the finger-pointing includes the war-cry of "Judicial Legislating."
So, in reaction, grew the idea of judicial restraint, the idea that judges were in no better position by reason of learning, experience, or institutional information gathering process, of judging the merits or wisdom of reform legislation than legislators. If the legislation doesn't work, that's the legislators' problem, and the people's, who know what they can do about it. Don't come to us on ordinary social and economic legislation, said the Court in 1937.
Justice Felix Frankfurter was the leading exponent of 'judicial restraint.' A new school of legal thought came in during this generation, called 'legal realism,' holding that judges weren't priests who, in some mysterious fashion, 'discovered' the law because only they could see through the legal mysts. Instead it turned out that judges were ordinary guys (they were virtually all men in those days) who put their pants on one leg at a time like the rest of humanity.
No more magic in judging, thank goodness, just how the judge felt that day. Let's hope he enjoyed a good breakfast and wasn't fighting with his better-half.
And that's they way judicial restraint and deference to the legislature remained until 1995 when the Lopez School Gun case was decided. Congress is now on notice that its power to regulate is limited anew, but that's a new chapter, for later.
It does have implications, however, for filling vacancies when they occur on the Court. Do you want activist judges who favor the expansion of the freedom of individuals to make important personal life choices for themselves, such as marital partner, or judges who want to turn the clock back?
Think Lawrence v. Texas. Liberty. Would you like the government telling you whom you may not choose to be your best friend for life and to live with? It's either your choice or the government's, and if its the government's that means it's your neighbors, working through the government, telling you how to live.
Perhaps you'd like the neighbors to mind their own business.
Justice Brandeis coined the quintessential definition of privacy: "The right to be let alone." Olmstead.
Justice Sheridan proclaims its twin: "Mind your own business, government, I'll decide for myself, thank you very much."
This cannot happen unless the president appoints judges who agree with you.
The usual motivation for the Old Court was that the legislation cost management too much at the expense of labor because government was interfering in the free market.
Laissez-faire (government hands-off, unregulated free marketry, unrestricted bare-bones, dog-eat-dog capitalism) was the rule of the day.
Labor was exploited in other words, men, women, and childen, in the name of Laissez-faire.
There were no wages and hours rules, nor child-labor, nor 8-hour day limits, nor workers comp, nor minimum wage, nor OSHA workplace safety rules.
Starvation wages, and if you got hurt on the job you suffered at home, at your own expense, while someone else took your job and you paid the doctor, if you could afford to pay. Otherwise you went untreated. Crippling injuries and death were the not infrequent result.
Remedial legislation was repeatedly struck down by the Court as unconstitutional.
Federal judges LIKED dog-eat-dog. They worked indoors; no heavy lifting. Steady paycheck. Couldn't get canned unless caught stealing. Not much opportunity there. They were the Big Dogs, coming, as they did, from the Big-Dog class of society that went to all the best schools, graduated, and took over.
Working class kids didn't see the inside of the Ivy League for a long time. Just the opposite there. Not a lot of sympathetic understanding from federal judges towards the working stiff in the bad-old-days.
You know what they used to say about federal judges, don't you? Only talked to God, and then only to correct Him.
Ba-Dum!
Different today.
Except for the talking to God part, of course.
The Old Court was acting as a Super-legislature, substituting its judgment as to the wisdom of legislative policy for that of the People's elected representatives, the legislatures of the Nation and the States. The legislatures said we need these reforms, and the Court thought it socialistic, as in Communistic. The Court, the workplace, and the legislatures were out of sync.
Justice Oliver Wendell Holmes, Jr., in the Lochner case, wrote one of the greatest dissents of all time, that later became law. He said that the Constitution did not mandate which kind of economic system the nation was required to have. If the People want to move into mixed or even entirely different economic areas, that was the People's choice and not for the Court to control. No one elected the Court.
Eventually, with great difficulty, the Court changed as the times changed.
Laissez-faire capitalism was on its death-bed during the Great Depression of the 1930s. Forget wisdom, the Court realized and said (reluctantly), that's up to the legislators who have to report to the public. If the public doesn't like it, they can agitate or vote for a change.
Hence the new rule: Unless the legislation is crazy it stands.
The Con-Law words for crazy are: Arbitrary and Capricious. That's too irrational for the Court and the World, meaning the Public. Again, it's the public. I'm coming to something, but first the law lesson. It'll help you with the cases later; kindly bear with me.
A statute is irrational when it doesn't serve its presumed goal: highway safety regulations that increase the risk of accidents, for example. Self-contradictory is irrational, crazy, nuts, arbitrary, capricious. You'd be surprised how legislatures can do that. Perhaps it's a sign the legislature is responding to some motivation other than pure reason!
Low scrutiny is the MOST deferential to legislation, which survives as long as it isn't nuts, or the legislature could imagine it isn't nuts.
High (or strict) scrutiny is reserved for legislation (or other government acts) that unfairly discriminates against people based on race or ethnicity, and perhaps a few other similar bases.
Intermediate level scrutiny so far has been reserved for emerging categores such as gender and age discrimination, where there may be conditions worth recognizing in some cases but which may be fair in others, protecting women and the elderly, for example, where they are particularly vulnerable.
These have taken years to develop, and scrutiny level determines outcome. Legislation that passes low and intermediate scrutiny may fail using heightened, or strict scrutiny. So you have to go through a three step process depending on context. You don't want to forget this little Con-Law tip.
The tip-off came in Footnote Four, the most famous footnote in Con-Law history, it's been called. There, in the Carolene Products case (1937), Justice Stone, in announcing no more Super-legislator role for the Court, said in the footnote that there were going to be important exceptions, however, for certain important types of case categories. Then the Court warned that it will continue to use Zeus's Thunderbolt, John Marshall's Big Axe, the power of Judicial Review, to declare legislation unconstitutional if it:
1. Violates textual guarantees of the Constitution, such as the Bill of Rights;
2. Tramples the rights of "discrete and insular minorities" who are unable to protect themselves politically, such as Eskimo in the South, and;
3. Interference with the political process, such as certain kinds of gerrymandering, voting requirements, etc.
The Warren Court, famed for protecting the rights of minorities and despised individuals such as those accused because of left-leaning or Communist sympathies in the age of legalized Red-baiting, has been called a Footnote Four court.
Are we a Footnote Four court today? I doubt it. Maybe sometimes, such as in Lawrence.
Which brings me to why I set this table before thee.
In an AP article appearing here, reporting that a federal judge in Washington, D.C. has enjoined the Pentagon from administering anthrax vaccine to the troops, the judge referred to a scrutiny level I hadn't seen before:
"U.S. District Judge Emmet G. Sullivan said the Food and Drug Administration violated its own procedures when it gave final approval to the vaccine last year because it failed to give the public an adequate opportunity to comment.
The men and women of our armed forces deserve the assurance that the vaccines our government compels them to take into their bodies have been tested by the greatest scrutiny of all - public scrutiny," Sullivan said."
That's BIG.
Low, intermediate, and high are the Con-Law levels of scrutiny developed to date.
Here we have a federal judge telling the Pentagon and the world that there's an even higher level of scrutiny for government rules: they must pass the highest level of scrutiny of all, the test of public opinion.
Which public, I wonder, domestic or foreign? Civilian or military?
The judge's point is that rule-making by the Pentagon, in secret, on a medical-scientific-health issue such as vaccinating millions of armed service personnel with anthrax vaccine, which may kill, with no opportunity for public comment, which includes expert and lay opinion, is no good. If the rule is sufficiently criticized, it might not be put into effect. By keeping the public and the experts in the dark, the rule will certainly not be put into effect, says the judge.
Secretly passed rules have had NO scrutiny worth mentioning.
No scrutiny is lower than low.
Public scrutiny is higher than high.
Are there other kinds of scrutiny?
Pres. Bush, in this presidential campaign, has been beating Sen. John Kerry over the head for advocating, before invading other countries, that we pass the test of world opinion.
And then there's the test of history.
Anyway, that's where these tests come from.
Existing tests prove wanting to prevent abuse, so we have to raise the bar higher and invent new ones.
Good for Judge Sullivan.
Nice to see a federal judge outranking a general, the whole Pentagon, even, isn't it?
You could do that some day.
Just bring the right case on behalf of your client, some serviceman or woman perhaps.
Good going, lawyers.
Good going, Judge.
Let's hope he doesn't get overturned by the Supremes.