Strict Scrutiny and Rational Basis Scrutiny
In Chapter 2 of How Rights Went Wrong, Jamal Greene introduces us to a rule of Constitutional interpretation suggested by Oliver Wendell Holmes in his dissent in Lochner v. New York (1905). The idea is that the Constitution protects few rights, but those it protects, it protects strongly. This cashes out as the requirement that the government must show very strong grounds if it infringes a protected right, the strict scrutiny test. However, the government need only show that it has a rational basis for other legislation, the rational basis test.
Chapter 3 explains how that rule came into effect, worked for a while, and then proved inadequate. The principle driver of change was Felix Frankfurter, showing once again the importance of people and relationships in the evolution of our legal system. Frankfurter was the son of Austrian immigrants. He came to New York City in 1894 at the age of 11. He was a star student, went to Harvard Law, and began to rise in government service. Greene describes him as “An inveterate sycophant and social climber” (p, 60). One of his targets was Holmes, and over the years, Frankfurter slobbered over him.
In 1914 Frankfurter joined the law faculty at Harvard and began to advocate for the Holmes dissent in Lochner. He was in and out of government service, and became a sort of Leonard Leo figure, placing his best students in clerkships and government positions.
He forged a relationship with Franklin Delano Roosevelt during WWI when both served on a government board. The relationship grew when FDR became governor of New York.
The effort to actualize Holmes’ Lochner dissent wasn’t going well through the 1920s, as the Supreme Court repeatedly applied the rule of the Lochner majority. When FDR was elected president, Frankfurter became one of his most trusted advisers. In the early years of the New Deal, SCOTUS struck down most of the laws enacted to deal with the Depression. That led to FDR’s threats to pack the Court, and to the sudden change in the outcomes of these cases.
US v. Carolene Products Co. was an early example. In that case, the majority based its decision on Frankfurter’s view of Holmes’ Lochner dissent. Further, it expanded that rule with Footnote 4, which Greene summarizes as holding that strict scrutiny would apply in three different cases:
(1) when the law interferes with a right the Constitution specifically protects, (2) when the law restricts the political process itself, or (3) when the law discriminates against particular religious or racial minorities. P. 66.
I read Greene as suggesting that one of the factors in Frankfurter’s advocacy was his progressive view of the need for government regulation of corporations. Footnote 4 connects that view with strong protection for minority groups.
Greene shows how this rule made its way into the leading treatises and legal textbooks, largely through the influence of people trained and steeped in Frankfurter’s views.
With minor adjustments, that remained the rule through the 50s and early 60s. That was a period of vast social change, and social unrest, as Black people, women, LGBTQ people, Native Americans, and poor people from all groups began to make demands on the legal system that went beyond the bare scope of Footnote 4.
One example of this push is Griswold v. Connecticut, which Greene discusses in detail. One of Frankfurter’s last SCOTUS decisions was Poe v. Ullman; Poe was a facial challenge to Connecticut’s ban on birth control. Frankfurter punted, saying that the statute was never enforced. Side note: the legal term is desuetude. It ought to apply, for example, to the Comstock Act which isn’t ever enforced, but with the current majority on SCOTUS, who knows.
Estelle Griswold, the executive director of Planned Parenthood League of Connecticut, got herself and a doctor arrested and convicted for dispensing birth control material and information. Frankfurter had retired due to a stroke. William O. Douglass, who had dissented in Poe, wrote the majority opinion in which he laid out the right to privacy.
In the remainder of the Chapter, Greene looks at the different ways courts, especially SCOTUS, have tried to deal with the demands of groups whose rights were limited by all branches of state and federal governments.
Discussion
1. Reading between the lines, it seems to me that Greene thinks that the values, biases, and opinions of judges play a crucial role in decisions. This is one of several versions of legal realism.
For the purposes of this Article, I define “legal realism” as the perspective that Supreme Court decisions resolving important constitutional law questions are based primarily on the Justices’ values, politics, and experiences, not on text, history, or precedent. In other words, personal preferences, rather than the prior law dictate most Supreme Court constitutional law decisions.
2. Here’s an example. Richard Posner is an intellectual. He served on the 7th Cir. From 1981 to 2017. He taught at the University of Chicago Law School for decades. He seems to have been influenced by the strict neoliberalism taught at the Chicago Business School. That connection perhaps led him to his theory of law and economics, which I would describe as the idea that in deciding cases Posner would assume that the law favors the economically efficient outcome.
In a 1985 article, An Economic Theory of the Criminal Law, he analyzes crimes like rape in terms of markets and market efficiency, apparently indifferent to the inherent silliness of the effort.
Put differently, the prohibition against rape is to the marriage and sex “market” as the prohibition against theft is to explicit markets in goods and services. [footnote omitted]
After the Great Crash of 2008, he formally renounced the entire project of the Chicago School of economics, including his own law and economics branch. Here’s a discussion. That, of course, is the mark of an intellectual: he rejected a theory he had relied on for decades when he saw it didn’t work.
2. Greene mentions the deeply felt trope that we have a government of laws, not men, citing John Adams. P. 58. How does it square with the theory that the prejudices and deeply held world views of judges are a critical factor in their decisions?
In routine cases it’s not a problem. But it’s a huge problem for major constitutional law issues decided by SCOTUS. Neil Gorsuch pompously demonstrated this when he said at oral argument in Trump v. United States, “…we’re writing a rule for the ages” about presidential immunity from criminal accountability. P. 140. That is not the job of a judge. Writing rules for the ages is the responsibility of legislatures. But the current majority doesn’t think like that. As they showed in Dobbs and the gun cases, they don’t even believe there are rules for the ages. There are only rules laid down by five unelected unaccountable lawyers, good only until changed by five other unelected unaccountable lawyers.
3. I think that when institutions are controlled by people willing to subvert the norms of their jobs to achieve ideological or political goals, the institutions will fail. There are no rules sufficient to restrain them. The only solution is to remove them and replace them with people who comply with the norms.
__________
Graphic: Gilbert Stuart’s portrait of John Adams.
I would describe “law and economics” as a preference for decisions that favor that already economically powerful, in the guise of enabling a 19th century restriction free model of resource extraction and profit-taking. The powerful are typically the most “efficient,” if you consider only a narrow range of issues and constituencies.
Milton Friedman’s “only shareholders count” mythology is, for example, part of that narrowing of interests. Friedman hid his policy choices behind arcane mathematics and economic skullduggery. He claimed that the losers in his system were not victims of choice, but of immutable laws.
Law and economics seems to be directly related to the “originalist” view of the law. The latter’s purpose seems to be to maintain the dominance of a white male wealth elite, at the expense of civil rights, generally, and the rights of women and people of color, in particular. Those interests did not fare well until the middle of the 20th century, long after the period originalists look to for their models. Originalism, in fact, seems to be a fraudulent argument against the modest successes of those groups.
I’ve been on the leftish end of the law and economics movement for about 40 years. It’s a bit complex.
It’s fair to say that, before the 1990’s, the law and econ movement favored the powerful, with the exception of tort law and maybe environmental law. (Law & econ can like tort law, although conservatives generally do not.) But things have gotten more complex since then, as the scholars have become more sophisticated: externalities, higher-order preferences, limited information and rationality, network effects, empirical economics, etc. Nowadays, you can find a respectable economic analysis for anything you want this side of Marx (who was a better sociologist than economist in any event.)
Suffice it to say that Econ 101 favors the powerful. Econ 301–not so much. The problem is that very few people know more than Econ 101, which is now identified with Mister Science™.
I think the problem lies in your description of the complexities: externalities, higher-order preferences, limited information and rationality, network effects, empirical economics. These things are difficult, if not impossible to resolve. Certainly the judicial process doesn’t have the capacity to deal with them.
They may be of considerable intellectual issue, and certainly are useful in honing the thinking of economists and legal academics.
But it seems to me that adding fraud to economic models would be more useful. The term is not used in the New Yorker article I linked. By 2010 when it was written, everyone knew that fraud was the major cause of the Great Crash. Or maybe it would be more useful to think about a model that could try to predict economic crashes.
Efficiency is included in some tort cases. For example, in a case where an injury is more easily prevented by one party than another, the loss usually falls on the former.
I think William K. Black, lawyer, PhD economist, and former bank regulator during the S&L crisis, would agree with you about adding incentives and disincentives to fraud.
Which Econ perspective, 101 or 301, do you think most legislators and judges use?
Touché!
I’m not even sure that legislators are up to Econ 101. And that might be a good thing.
There is an uncanny valley in economics. If you learn a bit of it, you know less about the world than you did before. You have to learn a lot just to regain where you were when you started. And you have to learn more before you can help the naive. The same is true for law, I think. A 1L has a much less realistic conception of the law than a person on the streets.
That last para. That last sentence. No faffing about.
(‘All’ it needs are the requisite majorities in Congress and – irony of ironies! – a president willing to use her newly-declared powers to just do it.)
In agreement with your point (3):
China’s long history has repeated cycles where:
(i) a dominant figure instituted a regime with strong central government imposing order;
(ii) under that regime’s order, some prospered greatly until they became so wealthy that their power was sufficient to challenge the central regime, eventually becoming too powerful to be governed by the central authority, and in the face of their defiance, the central authority failed – for clarity, defiance of the central authority frequently involved the non-payment of taxes required to fund the central authority’s civil service and army;
(iii) the various rich and powerful lords would then compete against one another until a new dominant player established a new central authority.
Overbearing central control interwoven with periods of widespread warfare between regions or factions doesn’t seem like a great model to follow. (See also the fall of the Roman republic.)
Trump’s overt lawlessness while still holding widespread support (if not a majority), along with the patently different treatment he has received as a pretrial defendant facing serious national security charges, is a really bad sign for US democracy.
The Supreme Court’s majority’s willingness to decide matters on ideological grounds favoring an executive with monarchical immunities and deprecating personal autonomy in health matters while upholding personal autonomy to possess lethal devices certainly isn’t helping the body politic’s well-being.
Your solution of removal unfortunately founders on one of the current institutional failures – the ineffectiveness of the impeachment process in the age of party-over-country political allegiances.
Ed, I am grateful you are reviewing this book.
Mehrsa Baradaran has a terrific detailed discussion about Milton, Posner, The Chicago School of Economics and their effects on the law in her book on Neoliberalism titled “The Quiet Coup, Neoliberalism and The Looting of America “for those that might more seek background on Ed’s discussion above.
People always refer to the rule of law. I always ask “Whose rule of law?”. My belief is because justice is undefined in the Constitution, it’s a vacuum that any judge is free to fill any way s/he wishes under his or her oath requirement to administer “justice”. Nine judges, nine different definitions. Polarized political parties pick the judges for the judges’ probability in adhering to the party’s sense of justice and accompanying rule of law.
The decisions of this court often remind me of Pirandello’s play Six Characters in Search of an Author only I call it Six Characters in Search of a Rationalization.
Many of my early posts here revolve around neoliberalism. I began the project after reading Philip Mirowski’s Never Let A Serious Crisis Gp To Waste The first part of this post summarizes some of my thinking on the issue.
Your point about justice is fascinating. I’ve been thinking something similar, that the Preamble to the Constitution provides guidance to its proper construction. Without defining the term, it says establishing justice is one of its purposes.
It’s hard to see how the gun cases meet any of the purposes laid out in the Preamble. The same is true of many recent decisions, including Dobbs. And how exactly does striking down health and environmental regulations promote the general welfare?
Ed, I don’t want to get away from your review. Justice and its Constitutional meaning and effect deserves its own post. I do think the framers were compromising all over the place to get a Constitution in place and were kicking important issues down the road for someone else to resolve at a later time. (Hope is not a plan!) Justice undefined and the Preamble as desire or intent are just two of them.
I do think Jamal Greene is trying to define justice in this book. It is why I enjoyed it so much.
The underlying principle of law is reason/reasonableness/rationality. This is why MAGA theocrats have a problem with it.
Interesting posting/topic.
The successful legal analysis of Strict Scrutiny, Intermediate Scrutiny and Rational Basis Scrutiny only works in the SCOTUS if each of the Justices can successfully pass their own reasonable person test.
Justices Roberts, Alito, Thomas, Gorsuch and Kavanaugh have yet to show fair mindedness when it comes to applying these three “scrutinies” to cases pushed to them by members of the Republican Party.
There maybe hope for Justice Barrett, but I wouldn’t hold my breath for her to be reasonable yet.
Felix Frankfurter sat down with Jan Karski, a Polish soldier who risked his life to bring news of the Nazi death camps to the Allies, listened closely to him, and refused to believe that what he said was accurate and actually happening. He didn’t think Karski was lying but he could not bring himself to believe what he had said, seen, experienced.
This should be taken into account when considering Frankfurter’s judgment.
Interview with Karski recalling that meeting
https://artsandculture.google.com/asset/karski-recalls-his-meeting-with-united-states-supreme-court-justice-felix-frankfurter-1943-claude-lanzmann/dgFS7OKiw9qznQ?hl=en
News of the Nazi’s programmatic massacres of Jews was not new among well-informed New Yorkers or Washingtonians by 1943, nor in London. But it was an unwelcome complication.
With the very political Frankfurter, though, it’s always useful to ask whether he “refused to believe,” because the information was inconsistent with what he knew of German politics and culture, or because he could not imagine how to effectively use the information, in the context of wider American war aims and the generally antisemitic USG of the time, which included key politicians and much of the State Department.
It’s really odd and frustrating that although he was said to be a non-observant Jew, Frankfurter was born Ashkenazi in Austria and should have had greater sensitivity to the news that Hitler was committing genocide against Jews.
Was he trying so hard to acculturate and become American that he erased the significance of his own Jewish heritage, thereby obstructing his own comprehension of mass violence against Jews? If so, how might that have affected his entire body of work?