Breakdown in the levels of scrutiny.

For more than a quarter of a century, levels of scrutiny have been crucial in determining the results of constitutional litigation. Three distinct tiers of review emerged, and the outcome in constitutional cases involving civil rights and civil liberties depended largely on the level of scrutiny that the Supreme Court applied.

With little fanfare, recent decisions have begun to erode these tiers of review. Indeed, one of the most significant aspects of the Court's last term was the number of cases in which the Court did not follow its usual approach to the levels of scrutiny. If this is a trend, it could be an important development in constitutional law.

The level of scrutiny, in a sense, is instruction for balancing. It informs courts how to arrange the weights on the constitutional scale when evaluating laws. If there is reason for great suspicion of the government or if a fundamental right is at stake, the government will be required by the level of scrutiny to meet a heavy burden. If the law involves an area where there is general deference to the legislature, the government will have a minimal burden.

The minimal level of review is the "rational basis test." All laws challenged under due process or equal protection clauses must meet at least this review level. Under this test, a law will be upheld if it is rationally related to a legitimate government purpose.(1)

In other words, the government's objective only need be a goal that is legitimate. Virtually any conceivable legitimate purpose is sufficient, and the means that are chosen to achieve the objective only need be reasonable.(2)

Under the rational basis test, the challenger of a law has the burden of proof. That is, the law will be upheld unless the challenger proves that the law does not serve any conceivable legitimate purpose or that it is not a reasonable way to attain the desired end. The test is enormously deferential to the government. Only rarely has the Supreme Court invalidated laws failing rational basis review.

The middle tier of review is "intermediate scrutiny." At this review level, a law will be upheld if it is substantially related to an important government purpose.(3)

In other words, the government's objective must be more than just a legitimate goal; the court must regard the purpose as "important." The means chosen must be more than a reasonable way of attaining the end; the court must believe that the law is substantially related to achieving the goal.

Intermediate scrutiny is used, for example, in evaluating laws involving gender discrimination, discrimination against nonmarital children, discrimination against undocumented alien children with regard to education, and regulation of commercial speech and speech in public forums.

The most intensive type of judicial review is "strict scrutiny." At this level of review, a law will be upheld if it is necessary in order to achieve a compelling government purpose.(4)

In other words, the court must regard the government's purpose as vital or "compelling," and the law must be shown to be "necessary" as a means to accomplishing the end. This requires proof that the law is the least restrictive or least discriminatory alternative. If it is not, then it is not "necessary" to accomplish the end.

Under strict scrutiny, the government has the burden of proof.(5) The law will be struck down unless the government can show that the law is necessary to accomplish a compelling government purpose. Professor Gerald Gunther has said that strict scrutiny is "strict in theory and fatal in fact."(6) When it is applied, laws are often declared unconstitutional.

Strict scrutiny is used, for example, when the Court evaluates discrimination based on race, discrimination against aliens (although there are exceptions), and interference with fundamental rights like privacy and freedom of speech.

Several of the Court's decisions last term significantly departed from this review framework. For example, in Denver Area Educational Telecommunications Consortium, Inc. v. F.C.C.(7) the Court considered a First Amendment challenge to three provisions of the Cable Television Consumer Protection and Competition Act of 1992 that regulate the broadcasting of "patently offensive" sexually oriented material on cable television.(8)

One provision permits a cable system operator to prohibit the broadcasting of programming that "depicts sexual or excretory activities or organs in a patently offensive manner." A second challenged section requires that cable systems allowing this kind of material segregate it on a single channel and block the channel from viewer access unless the viewer requests it in writing. The final provision allows cable systems to prohibit sexually oriented material on "public, education, or governmental channels."

Without a majority opinion, the Court upheld the first provision but invalidated the latter two. As to the clause that allowed cable systems to refuse to broadcast sexually explicit programming, Justice Stephen Breyer wrote a plurality opinion joined by Sandra Day O'Connor, David Souter, and John Paul Stevens. Breyer explicitly eschewed choosing or applying a level of scrutiny, declaring, "[A]ware as we are of the changes taking place in the law, the technology, and industrial structure related to telecommunications, we believe it unwise and unnecessary to pick one analogy or one set of words now."(9)

The express refusal to select or apply a level of scrutiny raises many troubling questions. The Court assumes that the level of scrutiny should vary depending on the medium used for communication but never justifies that premise. Also, the Court's refusal to choose a level of scrutiny provides no guidance to lower courts that apply the First Amendment to new technologies.

This term, the Court has before it a significant case involving the constitutionality of a recently enacted federal law, the Communications Decency Act, which regulates speech on the Internet.(10) It will be interesting to see whether the Court again refuses to use the tiers of review in a First Amendment analysis of an emerging technology.

Another substantial development last year was the Court's adopting an intermediate scrutiny approach to gender discrimination that is virtually indistinguishable from strict scrutiny. In United States v. Virginia, the Supreme Court declared unconstitutional the exclusion of women by the Virginia Military Institute (VMI).(11)

Virginia, in response to an order from the U.S. Court of Appeals for the Fourth Circuit, had created the Virginia Women's Institute for Leadership at Mary Baldwin College. The Court found this action insufficient to excuse gender discrimination at VMI; women still were denied an opportunity available only to men.

Justice Ruth Bader Ginsburg applied intermediate scrutiny but said that "parties who seek to defend gender-based government action must demonstrate an exceedingly persuasive justification for that action.... The burden of justification is demanding and it rests entirely on the state."(12)

Ginsburg said that the justification "must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females."(13) VMI's exclusion of women was found unconstitutional because it was based entirely on gender stereotypes.

The Court's description of the test for intermediate scrutiny, requiring an "exceedingly persuasive justification" and placing the burden entirely on the government, is a standard very much like strict scrutiny. The tiers of review thus seem blurred.

One more case reflecting changes in the Court's approach to the levels of scrutiny was Romer v. Evans.(14) The Court declared unconstitutional Colorado Amendment 2, a voter-approved initiative that repealed all laws protecting gays, lesbians, and bisexuals from discrimination and that prohibited future government action to protect these groups from discrimination.

Justice Anthony Kennedy, writing for the Court, explained that there was no legitimate purpose in singling out a particular group and precluding it from using the political process. The majority opinion said that "laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected."(15)

Romer is notable because it used the rational basis test in invalidating the law. In the last 50 years, the Supreme Court has declared only a handful of laws unconstitutional for failing rational basis review.(16) Moreover, traditionally moral justifications for laws have been deemed sufficient to meet the rational basis test.

Justice Antonin Scalia, in a dissenting opinion joined by Chief Justice William Rehnquist and Clarence Thomas, argued that Amendment 2 was a permissible moral judgment by the voters of Colorado "to preserve traditional sexual mores against efforts of a politically powerful minority to revise those mores through use of the laws."(17) The majority rejected this view, stating, "We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do."(18) In this, the Court used a far more rigorous version of rational basis review than usually is employed.

A dissatisfied Count

The levels of scrutiny have been the basis for judicial review in constitutional civil rights and civil liberties cases for decades. There is no indication that the Court is about to abandon them and scrap this approach to balancing in constitutional cases.

Yet, these three decisions depict a Court that is not satisfied with the traditional tiers of review. The refusal to adopt any level of scrutiny in the cable case, the articulation of a form of intermediate scrutiny much like strict scrutiny, and the application of a rational basis test with real teeth may signify a broader change in the law. One crucial aspect of the current Court term will be a further revelation of how the justices deal with the levels of scrutiny.

Notes

(1.) See, e.g., Pennell v. City of San Jose, 485 U.S. 1 (1988); U.S. R.R. Retirement Bd. v. Fritz, 449 U.S. 166 (1980); Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522 (1959).

(2.) See Fritz, 449 U.S. 166; Schweiker v. Wilson, 450 U.S. 221 (1981).

(3.) See, e.g., Craig v. Boren, 429 U.S. 190, 197 (1976); Lehrv. Robertson, 463 U.S. 248, 266 (1983).

(4.) See, e.g., Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995); Sugarman v. Dougall, 413 U.S. 634 (1973); Sherbert v. Verner, 374 U.S. 398 (1963).

(5.) Miller v. Johnson, 115 S.Ct. 2475, 2490 (1995); Burson v. Freeman, 504 U.S. 191, 198 (1992); City of Richmond v. Croson, 488 U.S. 469 (1989).

(6.) Gerald Gunther, Foreword. In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972).

(7.) 116 S. Ct. 2374 (1996).

(8.) Pub. L. No. 102-385, 106 Stat. 1486 (1992) (codified as amended at 47 U.S.C. [sections] 532(h), 5320) (West Supp. 1996)).

(9.) 116 S. Ct. 2374, 2385 (internal citations omitted).

(10.) American Civil Liberties Union v. Reno, 929 E Supp. 824 (E.D. Pa. 1996), cert. granted, 64 U.S.L.W. 2794 (1996) (considering the constitutionality of the Communications Decency Act of 1996, 47U.S.C. [sections] 223(a)(1)(B)).

(11.) 116 S. Ct. 2264 (1996).

(12.) Id. at 2275.

(13.) Id.

(14.) 116 S. Ct. 1620 (1996).

(15.) Id. at 1628.

(16.) See, e.g., City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985); Zobel v. Williams, 457 U.S. 55 (1982); United States Dep't of Agriculture v. Moreno, 413 U.S. 528 (1973) (all these cases declaring laws unconstitutional as violating the rational basis test).

(17.) 116 S. Ct. 1620, 1629 (Scalia, J., dissenting).

(18.) Id.

Erwin Chemerinsky is the Legion Lex Professor of Law, University of southern California Law School.