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(1) the “hybrid” kind of strict scrutiny review. Following this discussion, Part III will discuss: This discussion will provide detailed treatment of a structured approach to phrasing and applying these two kinds of strict scrutiny tests. Part II of this article will discuss the two well-established kinds of strict scrutiny.
#LEVELS OF SCRUTINY FREE#
Brunetti, a case involving viewpoint discrimination in free speech cases. (4) suggestion of a “categorical” approach of unconstitutionally when traditionally strict scrutiny has been applied, such as in Iancu v. Bollinger, a case involving race discrimination under the Equal Protection Clause and (3) suggestion of “extremely limited” possibilities for compelling interests to satisfy strict scrutiny, as in Justice Thomas’ concurrence in Grutter v. (2) a “watered-down” kind of strict scrutiny, applied in cases like Fisher v.
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FCC, which involved regulation of cable television (1) a “hybrid” kind of intermediate/strict scrutiny review used in cases like Denver Area Educational Telecommunications Consortium v. These four can be viewed as “mutations” of the two kinds of strict scrutiny review proper to apply.
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In actual Court decisions, four other kinds of tests have been used, or suggested, by the Court where one of the established versions of strict scrutiny should apply. There is also (2) a “loose” strict scrutiny approach used for cases involving racial redistricting challenges under the Equal Protection Clause in cases like Bush v. Members of the New York State Crime Victims Board. Croson Co., or (b) content-based regulations of speech in a public forum, in cases like Simon & Schuster, Inc. Virginia, or in cases of involving (ii) race-based affirmative action, in cases like City of Richmond v. (1) “standard” strict scrutiny review used for cases like (a) racial discrimination under the Equal Protection Clause, both in cases involving (i) discrimination against minorities, as in Loving v. This article addresses “The Structure of Strict Scrutiny Review.” Today, there are two versions of strict scrutiny review. Justice Thomas’ criticisms stated in points and above on the “scientific nature” of the standards of review and possible selective application of “rational basis review” are addressed in a separate article entitled, “The Structure of Rational Basis and Reasonableness Review.” Justice Thomas’ criticism in point about the malleability in selecting which standard of review to adopt is addressed in a separate article entitled, “Justifying the Supreme Court’s Standards of Review.” Justice Thomas’ criticism in point regarding selective application of the “higher standards of review” are addressed into two related articles, “The Structure of Intermediate Review” and “The Structure of Strict Scrutiny Review.” All four of these articles are now posted on SSRN and available at. 420, 426 (1961).ĭespite these concerns, careful attention to the Court’s decisions reveals a predictable and principled structure to the Court’s existing standards of review. Meanwhile, the Court selectively applies rational-basis review – under which the question is supposed to be whether ‘any state of facts reasonably may be conceived to justify’ the law – with formidable toughness.” Id., quoting McGowen v. ore recent decisions reflect the Court’s tendency to relax purportedly higher standards of review for less-preferred rights. If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result. Justice Thomas added, “But the problem now goes beyond that. Hellerstedt, Justice Thomas criticized existing Supreme Court doctrine regarding the “tiers of scrutiny,” quoting a passage from an earlier Justice Scalia dissent that the “three basic tiers – ‘rational basis,’ intermediate, and strict scrutiny – ‘are no more scientific than their names suggests, 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.’” 136 S.