The James Wilson Foundation on Natural Rights and the American Founding

“The Shell Game of ‘Tiers of Scrutiny’ Exposed, Once and for All” –Prof. Arkes in the Library of Law and Liberty

We invite you to read Prof. Arkes’s essay, “The Shell Game of ‘Tiers of Scrutiny’ Exposed, Once and for All,” in the Library of Law and Liberty.  In the piece, Prof. Arkes offers commentary on the 2016 Texas abortion case, Whole Woman’s Health v. Hellerstedt, drawing upon the reasoning contained in Justice Thomas’s dissent.  Prof. Arkes joins Justice Thomas in exposing the logical emptiness of what have become known as the judicial “tiers of scrutiny.” Some excerpts:

“But as Justice Thomas pointed out, nothing offered a more dramatic contrast with the standards that the Court was invoking now with the clinics where abortions are performed. The purpose of the legislation in Texas was to insure the cleanliness and adequacy of the medical equipment, along with the competence of the surgeon. Those measures bore the plainest relation to the end of securing the safety of the women who were undergoing the abortions. Yet even measures so clearly directed to the safety of the public would be judged with the most demanding, strict scrutiny when it came to abortion, for the freedom to order an abortion stood now for some of the judges as one of the truly “first freedoms”—an anchor of personal freedom no less than the freedom of speech or religion. Justice Thomas sounded the alarm—and sounded it rightly—this was not merely another one of those instances in which judges had fallen into inconsistency or even manipulated the law for their own favored ends. It was not merely a matter of inverting ‘rational relation’ and ‘strict scrutiny.’ To borrow a line from Edmund Burke, it was not a matter of steps in the ladder, for the whole scale was false. What Kennedy and his colleagues managed to reveal was the shell game—the philosophic and logical emptiness—of ‘tiers of scrutiny.'”

“Justice Scalia spoke a piercing truth here in the case on the Virginia Military Institute (United States v. Virginia, 1996) when he remarked that those three basic tiers of “rational basis,” intermediate, and strict scrutiny—’are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case.’ And Justice Thomas has now pronounced what should stand as the final, hard judgment here, writing that the appeal to these ‘tiers of scrutiny’ is ‘increasingly a meaningless formalism. As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat.’ The hard truth, he thought, is that there are no standards that mark off certain constitutional rights as more important than others. And no propositions to explain just what standards the Court is using even when it is seeking a ‘compelling’ justification. What has been revealed in the case of Whole Woman’s Health is that the rights that demand a strict scrutiny for their protection do not disclose themselves on any moral scale of rightness. They are simply the rights that the judges care about more than others. And in the world of law that has taken form over the last 40 years, there is virtually nothing that liberal judges or politicians care more about than the rights of abortion and sexual liberation.”

Read the whole column here.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790