Double Standard in the Supreme Court?

The Supreme Court, overtime, has applied different constitutional standards with respect to civil rights and liberties. These standards are often the rational basis test and the strict scrutiny test, which came about through interpretations of old equal protection, new equal protection, procedural due process and substantive due process. These methods of review, or standards, create different burdens of evidence for different parties. The history of today’s standards took a long time to create. In fact, there are many comments by Justices in landmark case law that manifest and transform these standards throughout American constitutional adjudication history. For example, Justice Stone in Footnote Four of United States v. Carolene Products Company (1938); it is often argued, initiated the transformation of the rational basis test toward what would be a new standard known as strict scrutiny many years later. This post will attempt to clarify the supposed constitutional double-standard and what they mean with respect to civil rights and liberties, and to elucidate many of the intricacies of the standards.

Cases that might not otherwise be given standing often found their acceptance to the Court via old equal protection. Holmes, to be sure, suggested that the criterion under old equal protection was “so lenient to make it almost meaningless” (Fino, speech). Old equal protection was often the last resort of judiciable cases to receive standing under the general admission of equal protection. This, generally, could be observed via class; such as class A, class B, etc., or upper division credit and lower division credit. Of course, Holmes rejected the due process claims in Buck v. Bell (1927), while raging, “three generations of imbeciles are enough” (414). In another example, Palko (1937) sought incorporation of the 14th Amendment’s equal protection clause, “no state shall deny any person within its jurisdiction equal protection of the laws,” so that the State could not engage double jeopardy. He also sought the due process clause of the 14th and 5th Amendments of the U.S. Constitution, “no person shall be deprived of life, liberty or property without due process of law.” This engaged some Justices on the Court to create and modify a standard of review regarding his claim.

Palko’s argument of incorporation was that, “a violation of the original bill of rights [if] done by the federal government is now equally unlawful by force of the 14th Amendment if done by a state” (355). The Supreme Court ruled against Palko and Justice Cardozo explicitly replied, “There is no such general rule” (355). Yet, Cardozo also illuminated that there was a schism regarding incorporation—that some laws, like free speech, are guaranteed while others, like grand jury indictments, are not. This meant that there was “selective incorporation.” Due to this confusion, the Court in Palko developed a “fundamental” rights test (355). Here, the Court set forth that liberty or justice could not be “sacrificed,” nor could deeply rooted traditions be lost (355). Adamson v. California (1947) also sought due process incorporation and failed, yet Black’s dissent asserted and purported for total incorporation. And as history is revealed, the Court did in fact incorporate nearly all of the Bill of Rights provisions by the end of the 1960s.

Justices in substantive due process were hesitant to fully incorporate the Bill of Rights and so continued to create descriptions of the rights. Common questions asked in cases were: (1) is this right fundamental, and (2) is it in the Constitution? Fundamental rights to date include voting, marriage, travel, but not education. Justice White in Duncan v. Louisiana (1968), for example, concluded that trial by jury is “fundamental to the American scheme of justice” and thus, incorporated through the 14th Amendment and binding (358). If the right is fundamental, then strict scrutiny is applied by the Court; if the right is not fundamental, then rational basis scrutiny is applied by the Court. There are major differences between these levels of scrutiny. Plaintiffs whom are granted a hearing with the strict scrutiny standard are likely to win and plaintiffs whom are granted a hearing under the rational basis standard are likely to lose.

The rational basis test, as observed in William v. Lee Optical (1955), questions whether or not the means are rationally related to a legitimate State interest. Under the rational basis test, the burden is on the challenger to show that the law is illegitimate and that the means used by the State are not rational. Under this standard, Justice Douglas wittingly ascertained in Lee Optical, “… the particular legislative measure was the rational way to correct it” (380). Additionally, the rational basis standard is now most often applied in economic, age, and household cases. In these cases, again, the challenger must demonstrate that the State’s goal is illegitimate. Another rational basis case was Railway Express (1949). This Court again found for the State in this economic case and upheld the State’s traffic safety argument.

Rational basis was often a real winner for the State and Stone determined in Carolene Products, Footnote 4, that there may be times when the standard of review should be more stringent against the State. Stone’s analysis argued that discrete, insular and statistical minorities, people without access to the political process, and those whom have been subject to a history of prejudice ought be given additional due diligence. Stone’s comments morphed over time into the second major standard used by the Court. Said briefly, the Court determined that some fundamental rights are subject to a higher form of review: strict scrutiny. The strict scrutiny test is used to determine whether or not the means are necessary and narrowly tailored to a compelling state interest. Under strict scrutiny, unlike the rational basis test, the burden is on the state to show that the law was indeed necessary and narrowly tailored to a compelling state interest. Strict scrutiny is often applied in race, ethnicity, national origin, fundamental rights, and national security cases.

In Loving v. Virginia (1967), The Court applied strict scrutiny under the equal protection clause of the 14th Amendment. Thus, the burden was on Virginia to show that maintaining White Supremacy was a compelling State interest (502). Here, the Court found that “restricting the freedom to marry solely because of racial classifications violates the central meaning of [equal protection]” (502). Strict scrutiny was illuminated in Justice Goldberg’s analysis of Griswold v. Connecticut (1965) when he wrote, “liberty protects those personal rights that are fundamental… marital relation is fundamental” (416). Roe v. Wade (1973) also engaged strict scrutiny. Justice Blackmun even quoted “compelling” when explaining the point of viability (425). It is important to recognize that the plaintiff did win in these equal protection and due process cases that held the standard of review to strict scrutiny.

In conclusion, the two standards of review are strict scrutiny and the rational basis test [yes, there are actually many more]. The strict scrutiny test is used to determine whether or not the means are necessary and narrowly tailored to a compelling state interest. Under strict scrutiny, unlike the rational basis test, the burden is on the state to show that the law was indeed necessary and narrowly tailored to a compelling state interest. The rational basis test questions whether or not the means are rationally related to a legitimate State interest. Under the rational basis test, the burden is on the challenger to show that the law is illegitimate and that the means used by the State are not rational. With respect to civil rights and liberties, it really matters which standard the Court uses to determine the outcome of the case. When the rational basis test is used, the State often wins. When strict scrutiny is used, the State often loses.

Book used: Constitutional Law, 16th Edition. Sullivan and Gunther. 2007.

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