Missouri Law Review Volume 75 Issue 4 Fall 2010 Article 4 Fall 2010 Strict in Theory, but Accommodating in Fact Ozan O. Varol Follow this and additional works at: https://scholarship.law.missouri.edu/mlr Part of the Law Commons Recommended Citation Ozan O. Varol, Strict in Theory, but Accommodating in Fact, 75 MO. L. REV. (2010) Available at: https://scholarship.law.missouri.edu/mlr/vol75/iss4/4 This Article is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Missouri Law Review by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. Varol: Varol: Strict in Theory Strict in Theory, But Accommodating in Fact? Ozan 0. Varol* ABSTRACT As law students quickly learn, the strict-scrutiny test governs challenges under the Equal Protection Clause to the government's use of suspect classifications and infringement on certain fundamental rights. To survive strict scrutiny, the government bears the heavy burden of showing a compelling interest in drawing a suspect classification or infringing on a fundamental right and narrowly tailoredmeans to achieve that interest. Over the years, strict scrutiny has expanded to serve as a bulwark against government intrusions on many fundamental rights and liberties in the United States Constitution - including the right to vote, marry, access the courts, and freedom of speech and association. At times, the United States Supreme Court was so demanding of the government in its applicationofstrict scrutiny that no government action seemed capable of meeting its demands. This prompted the Supreme Courtjustices to counter, in at least eleven individual and majority opinions, that strict scrutiny was not "strict in theory, but fatal in fact." So long as the government met its burden - albeit a highly demanding one - the Court would uphold the government action as constitutional. But times have changed Strict scrutiny is strict no more. In its attempt to remedy the perceived rigidity of strict scrutiny, the Supreme Court overcorrected. The pendulum has now swung in the opposite direction. In a recent line of Supreme Court decisions, justices in majority and dissenting opinions have diluted the strict-scrutiny test with a strong dose of deference to the government. Out of these decisions emerges a test that is strict in theory, but accommodating in fact. This Article is an analysis and critique of deferential strict scrutiny. The Article reveals inconsistencies in the Court's use of run-of-the-mill strict scrutiny and deferential strict scrutiny, which have left government actors uncertain about the constitutionality of their conduct and the lower courts in a quandary as to which version of strict scrutiny to apply and when. The * Visiting Assistant Professor of Law, Chicago-Kent College of Law; J.D., The University of Iowa College of Law, 2007; B.A., Cornell University, 2003. I am in- debted to Judge Carlos Bea and William Buss for their many insightful comments on earlier drafts. Thanks to Arthur Bonfield, Ben Feuer, Christopher Schmidt, Kimberly Taylor, and Tung Yin for helpful discussions and feedback. Thanks also to the edi- tors of the Missouri Law Review for their thoughtful suggestions and careful editing. Published by University of Missouri School of Law Scholarship Repository, 2010 1 Missouri Law Review, Vol. 75, Iss. 4 [2010], Art. 4 1244 MISSOURI LAW REVIEW [Vol. 75 Article argues that, if unconstrained, this newly minted version of strict scrutiny - which allows the government to avoid an exacting constitutional inquiry - puts at risk the very liberties that strict scrutiny was designed to protect. 1. INTRODUCTION The origins of the strict-scrutiny test have been the subject of much aca- demic debate.' According to some accounts, the roots of the test can be traced to the Supreme Court's decision in Korematsu v. United States, a wide- ly criticized opinion that upheld the internment of Japanese Americans during World War 11.2 In that case, the Court held that "the most rigid scrutiny" would govern all challenges under the Equal Protection Clause to the gov- ernment's classification of individuals according to their race.4 Analyzing the equal-protection challenge in a highly deferential manner to the government,5 the Court held that the government's interest in preventing espionage and sabotage by the Japanese justified its internment of Japanese Americans dur- 1. See, e.g., Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. REV. 1267, 1275 (2007) ("[T]he modem [strict-scrutiny] formula evolved simultaneously in a number of doctrinal areas ... ."); Peter J. Rubin, Reconnecting Doctrine and Purpose: A Comprehensive Approach to Strict Scrutiny After Adarand and Shaw, 149 U. PA. L. REV. 1, 3 n.1 (2000) ("[T]he formal concept of strict scrutiny developed in the area of equal protection ... ."); Stephen A. Siegel, The Origin of the Compelling State Interest Test and Strict Scrutiny, 48 AM. J. LEGAL HIST. 355, 357 (2006) (ar- guing that the strict-scrutiny test first appeared in the Supreme Court's First Amend- ment jurisprudence); Adam Winkler, Fatal in Theory and Strict in Fact: An Empiri- cal Analysis of Strict Scrutiny in the Federal Courts, 59 VAND. L. REv. 793, 798 (2006) ("[T]he strict scrutiny standard was first suggested by implication in the fam- ous footnote four of United States v. Carolene Products."). 2. 323 U.S. 214, 216, 219 (1944); see also Grutter v. Bollinger, 539 U.S. 306, 351 (2003) (Thomas, J., concurring in part and dissenting in part) (noting that the strict-scrutiny test "was first enunciated in Korematsu"); Fallon, supra note 1, at 1276 (stating that Korematsu "included language that can be seen as anticipating what we would now call strict scrutiny"). 3. U.S. CONST. amend. XIV, § I ("No State shall ... deny to any person within its jurisdiction the equal protection of the laws."). 4. Korematsu, 323 U.S. at 216 ("[A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny."). The Korematsu Court's formulation of the "most rigid scrutiny" test did not include the compelling-interest and narrowly-tailored-means elements that comprise the current strict-scrutiny test. See Fallon, supra note 1, at 1274. The Court developed the modem formulation of the test in the 1960s. Id. at 1283. 5. See Siegel, supra note 1, at 382 ("Although [the Korematsu Court] intimated a heightened state interest requirement for racial classifications, [the Court] entirely deferred to the government's assertion that it was met."). https://scholarship.law.missouri.edu/mlr/vol75/iss4/4 2 Varol: Varol: Strict in Theory 2010] STRICT IN THEORY, BUTACCOMMODATING IN FACT? 1245 ing wartime.6 Justice Murphy vehemently dissented from the Court's "legali- zation of racism" under the auspices of heightened scrutiny. Since Korematsu, the Court expanded the use of strict scrutiny from its application in the context of racial classifications. In the Equal Protection Clause context, strict scrutiny now also governs classifications on the basis of national origin and state classifications on the basis of alienage. 9 In addition, strict scrutiny applies to infringements on certain fundamental rightso under the Due Process and Equal Protection Clauses - including the right to mar- ry, to control the upbringing of one's children,12 to vote, to access the courts,14 and to travel within the United States.1s Governmental infringe- ments on the First Amendment rights to freedom of speech and freedom of association also are subject to strict scrutiny. To survive strict scrutiny, the government bears the heavy burden of sa- tisfying two elements: one relating to the government's ends and the other to its means.' 7 As to its ends, the government must show a compelling interest in drawing a suspect classification or infringing on a fundamental right. 1 As to its means, the government must prove that it adopted narrowly tailored 6. Korematsu, 323 U.S. at 217-18. 7. Id. at 242 (Murphy, J., dissenting). 8. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985). 9. Examining Bd. of Eng'rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 602 (1976). There are some exceptions to the application of strict scrutiny to alienage classifications, such as state classifications related to self-government and the democratic process and congressionally approved alienage classifications. ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 743-46 (2d ed. 2002) (citing Foley v. Connelie, 435 U.S. 291, 296 (1978) (self-government and dem- ocratic process); Mathews v. Diaz, 426 U.S. 67 (1976) (congressionally approved classifications)). 10. Adam Winkler has shown that, contrary to conventional wisdom, infringe- ments on only some - not all - fundamental rights are subject to strict scrutiny. See generally Adam Winkler, Fundamentally Wrong About Fundamental Rights, 23 CONST. COMMENT. 227 (2006). 11. See generally Zablocki v. Redhail, 434 U.S. 374 (1978). 12. See generally Troxel v. Granville, 530 U.S. 57 (2000). 13. See generally Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1966). 14. See Bounds v. Smith, 430 U.S. 817, 828 (1977). 15. See United States v. Guest, 383 U.S. 745, 757 (1966). 16. See generally Grayned v. City of Rockford, 408 U.S. 104, 116-17 (1972) (freedom of speech); Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (freedom of association). 17. Johnson v. California, 543 U.S. 499, 505, 506 n.1 (2005) ("We put the bur- den on state actors to demonstrate that their race-based policies are justified.").