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Varol on Strict Scrutiny

By Lawrence Solum

Ozan O. Varol (Keker & Van Nest LLP) has posted Strict in Theory, but Accommodating in Fact? (Missouri Law Review, Forthcoming) on SSRN. Here is the abstract:

As first-year law students quickly learn, the strict-scrutiny test governs challenges under the Equal Protection Clause to the government?s classification of persons according to their race. To survive strict scrutiny, the government bears the heavy burden of persuasion to show a compelling interest in drawing a racial classification and narrowly tailored means to achieve that interest. Over the years, strict scrutiny has expanded to serve as a bulwark against government intrusions on other fundamental rights and liberties enshrined in the United States Constitution - including the right to vote, marry, access the courts, freedom of speech, and freedom of association. At times, the United States Supreme Court was so demanding of the government in its application of strict scrutiny that no government action seemed capable of meeting its demands. This prompted the Court to counter, in at least eleven 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 the lower courts in a quandary as to which version of strict scrutiny to apply and when. The 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.

Full post as published by Legal Theory Blog on March 29, 2010 (boomark / email).