The Shell Game of "Tiers of Scrutiny"— Exposed, Once and for All

We have absorbed over the last few weeks the burst of anger on the part of pro-lifers and conservatives over the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt. The Court struck down a measure that sought a dramatic improvement in the professional quality, and the safety, of the surgical suites involved in abortion.

To call the measure “comprehensive” would be an understatement. For what else could be said of a regulation of abortion that sought to prescribe “a clear floor area of at least 240 square feet” in which the “minimum clear dimension between built-in cabinets, counters, and shelves shall be 14 feet”?

But that the Court should object to a measure aimed so comprehensively at the safety of patients, was taken as a point that has deepened the anger with disbelief. And yet, if the pro-lifers could recover their most sober judgment, it’s the reactions of disbelief that should stir the deepest disbelief.

I was in the courtroom on the day this case was argued early in March, and the air was charged with serious concern precisely because the outcome was no sure thing. As everyone understood, it would hinge on Anthony Kennedy, and his move to join the majority in this case simply confirms that the absence of Justice Scalia did not affect the result.

The uncertainty here was: Would Kennedy hold to his willingness to sustain measures on abortion that barred the gratuitous, callous killing of the child in the womb—as he revealed in his sharp dissent on partial-birth abortion in Stenberg v. Carhart (2000), or in his opinion for the Court, sustaining the federal ban on partial-birth abortion in Gonzales v. Planned Parenthood (2007). Or, on the other hand, would he recoil from a scheme that was put forth, with too much indirection and cleverness, to clamp down on the “right to abortion”?

The heart of the problem was that the legislators had to frame this law—and lawyers had to defend it—without speaking the truth that dare not speak its name, or the concern that truly animated this law. The justices on the Supreme Court who were averse to this law could hardly avoid that central truth of the matter, and they had not the slightest hesitation in pronouncing it: Behind all of the talk about safety they saw the intention of forcing more abortion clinics out of business. They suspected that this regulation was not exactly like other forms of regulation, for they had reason to think that the object of the law was not to make the business of abortion safer, but to have far less of it.

The law required that a “physician performing or inducing an abortion . . . must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that . . . is located not further than 30 miles from the location at which the abortion is performed or induced.” That provision came along with other requirements more demanding on the cleanliness and professional protocols of the surgical suites—far more so than the regulations typically enforced on abortion clinics in the past.

In the notable case of Kermit Gosnell in Philadelphia, the authorities had held back from even a cursory form of regulation because there was an unmistakable sense in the air that what was going on in those “surgical suites” was no ordinary surgery. The business might have been grisly, but it was seen as bearing the overtones of a “constitutional right.”

The bloody mess in Philadelphia, though, had to give rise to the question of just why this business of abortion should not be held to the requirements of safety and professional responsibility that are typically enforced on other clinics, or even other forms of “business.” As Justice Alito observed, if these abortion clinics “were simply asserting a constitutional right to conduct a business or to practice a profession without unnecessary state regulation, they would have little chance of success.”

But the Solicitor General of Texas, arguing before the Supreme Court, could not openly declare that the lawmakers were animated by a deep moral objection to abortion itself, an objection woven with the evidence of embryology and principled reasoning. The legislation had to be defended solely on the grounds of making the abortions safer, less life-threatening, for the women who were undergoing the procedure.

When the case was framed in that way, it opened itself to a counterattack that was as relentless as it was predictable. The Court was told:

• That only about 1 percent of abortions in Texas had encountered the complications that required admissions to a hospital;

• That there have been far more emergencies of that kind emanating from liposuctions and colonoscopies, and yet those casualties have not inspired the same extensive measures;

• That before the enactment of the law, there were more than 40 licensed clinics on abortion in Texas. But in the run-up to enactment, about half of the clinics closed, and in one estimate, there would be only seven or eight clinics remaining that could meet the standards of the law.

Moreover, with the geographic spread of the remaining clinics, there promised to be a notable increase in the distance that “women of reproductive age” would have to travel in reaching a clinic. There was thought to be a 350 per cent increase in the number of women in this group living more than 150 miles from a clinic, and an even larger rise in the population of these women living more than 200 miles away.

For the judges who had absorbed the phrases running through the cases on abortion, those estimates were enough to trigger the charge that the law placed an “undue burden” on the freedom of women (and their helpmates) to choose abortions.

The opponents of these laws have usually been able to summon the most concrete sense of the strains on women as they reckon the need to drive for several hours on a highway, and arrange accommodations for themselves at motels along the way. And yet this concreteness, so vividly summoned, works by abstracting the action from the plainest things that it means for the woman who is engaging in it: She cannot really purge from her thoughts that she is about to put herself under a surgical knife with the purpose of snuffing out an innocent human life, the child she is carrying.

It may occur to her as well that she is submitting herself to that surgery even when it is not made necessary by any medical condition that is threatening her health. And totally screened out of the picture, in the reckoning of “burdens,” is this cardinal question: Is it really too much of a burden to ask people to drive for three to four hours, for a distance of some 150 miles, before they take the step of destroying an innocent life?

But then again it takes a rather special sensibility to write the lines set down by the District Court judge who struck down this legislation—and which Justice Breyer and his colleagues had not the slightest qualm about citing: that “before the act’s passage, abortion in Texas was extremely safe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure.”

About 60,000 to 72,000 abortions per year. And virtually no “deaths”?

The deaths of the unborn children have been screened from view because these are lives that just don’t “count” any longer as human lives for Stephen Breyer and his liberal colleagues. Nothing runs deeper in these cases than that screening, and it works to produce the trick-of-the-eye here: The arrangements in Texas are assailed because the law will impose an “undue burden” on those seeking abortions, and yet the case doesn’t come to us on the force of any complaint brought by a woman who claimed to have been put under an “undue burden” as a result of the law, and deflected then from having an abortion.

But is that not what the established rules of “standing” are meant to foreclose? Isn’t it the very point of these rules, respected by liberals as well as conservatives, that cases undergo these tests before they become “justiciable” or the fit objects of judgment by unelected judges?

And yet, as Justice Alito pointed out, the rules of “standing” were subverted here by the willingness to have the cases brought by the people who operate the clinics that are threatened with closure—not the women who may be faced with discouragements for the abortions they’re pondering. This was notably different from the cases on “partial-birth abortion,” where the law would bar the ever-willing, ever-active Dr. Carhart from performing these brutal procedures.

Yes, many clinics in Texas have closed, but many of those closures would have been produced by the decline of demand in their area, or by the advent of new, larger, more efficient clinics brought on line by Planned Parenthood. Abortions have run to about 60,000 to 72,000 per year, and yet there has been no evidence of any appreciable decline in abortions as a result of this move by Texas to bar the advent of new Kermit Gosnells operating in their state.

But this inversion in the rules of standing was hardly the most serious inversion in this case, or the inversion that ran the deepest. It was Justice Thomas who brought out these points with an explicitness so jarring that one could hardly fail to notice.

The most immediate feat of judicial acrobatics came in turning on its head the reasoning offered by the Court only a week earlier in sustaining the policy on racial preferences at the University of Texas. Fisher v. University of Texas had come before the Court before, and Justice Kennedy had insisted in the earlier hearing of the case that racial discrimination in any degree had to be examined with a strict scrutiny. The expectation was that he would hold to that standard in a severe way this time, even as the university contrived one scheme after another to keep in place a system in which decisions on admission would still pivot at some point on the race of the applicant.

But now Kennedy was willing to leave the scheme of racial preferences intact even as he acknowledged that “admissions officers can consider race as a positive feature of a minority student’s application.” He now suggested that the racial preference was softened by the fact that “consideration of race is contextual and does not operate as a mechanical plus factor for underrepresented minorities.” That race may act as one factor among many does not, however, dislodge the fact that in some instances the student’s admission will indeed pivot decisively on his or her race.

What happened then to Kennedy’s resolve to judge any scheme of racial preferences with the most demanding standards that attach to “strict scrutiny,” as the Court has bandied about that term? That resolve—and that standard—now gave way to a willingness to judge by the softer standard of whether the legislation at least bore a “rational relation” to some legitimate end that the legislature could pursue.

The Court would essentially back away from critical engagement as long as the legislation was simply not random—as long as it bore any plausible relation to a legitimate end, even if it bore little chance of begetting the “good” it was proclaiming to seek. Justice Kennedy was no longer disposed, then, to demand the evidence to support the starry-eyed claims that a critical mass of racial or ethnic minorities would enhance “diversity,” foster friendship and respect, and raise the performance of students. The fact that these policies were attended by these pious wishes was enough now for Justice Kennedy and his liberal colleagues to leave the university free to dally with schemes for racial preferences, perhaps until it could figure out just what might count as evidence to support its case.

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.

Thomas cut to the shift in standards: “even if a law imposes no ‘substantial obstacle’ to women’s access to abortions, the law now must have more than a ‘reasonabl[e] relat[ion] to . . . a legitimate state interest.’ ”

And here, as he pointed out, with a thin delicacy, Kennedy was overturning his own reasoning once again, as he had in the Fisher case on racial preferences. For Kennedy had written in dissent in the Gonzales case, on partial-birth abortion, that “[c]onsiderations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends.” If the law on abortion in Texas were judged with the same deference that was accorded to the work of the legislature on racial preferences, that law would have been readily sustained.

But as 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.”

The terms “rational relation,” “strict scrutiny,” and “tiers of scrutiny” have been picked up and repeated by judges because they were evidently taken seriously over the years by justices on the Supreme Court. Lawyers in turn were induced to adopt them as mantras and keep repeating them, not because they had any comprehensible meaning, but because judges continued to treat them as though they did. There was, early on, a distinction between laws that required merely a “rational relation” to their ostensible ends, while at the other end of the spectrum were laws so seemingly hard to defend in principle that they called for “strict scrutiny.”

After a while there was added, of course, some middling standard, either more demanding or more relaxed, a category of “intermediate” scrutiny, mainly dealing with allegations of discrimination based on sex. But intermediate between what? The philosophic looseness of the anchoring terms could hardly be firmed by the mere invention of another term, dangling somewhere in the middle.

As Justice Thomas recognized, this scheme was a relatively recent innovation, taking hold mainly in the 1960s. But several commentators have traced its origin quite plausibly to Justice Harlan Stone’s famous Footnote 4 in the Carolene Products case in 1938. In that note, Stone suggested tiers of rights. The presumption of constitutionality might be “narrower . . . when legislation appears on its face to be within a specific prohibition of the Constitution.” And there would be an even “more exacting scrutiny under the general prohibitions of the [Fourteenth] Amendment” when legislation restricted “those political processes, which can ordinarily be expected to bring about repeal of undesirable legislation.”

In this way, the Court brought forth a more demanding test for legislation that would restrict political speech. In contrast, there would be a far lesser protection for the “commercial speech” that people used in hawking their wares. It wasn’t until the 1970s that the recognition began to break through that the protection may be claimed quite as aptly for the speech that forms a natural part of the business of selling a legitimate product or service.

But in all strictness, anyone with a smattering of philosophy, or some brush with the study of logic, should have reacted as one might to a note played off-key. After all, a law works by closing down personal freedom and private choice and replacing them with a uniform standard imposed on all. And unless law is simply understood as the brute exercise of power, or the Rule of the Strong, this imposition of law is something that engages our moral reflexes and calls out for a “justification.”

If that is the case, how would it make sense to mark off a category of laws that require a “compelling” justification, as opposed to a laws that can be floated with a justification not exactly compelling, but good enough, say, to get through the day? Can we have, in contrast to a “compelling justification,” a “lame justification” that still satisfies the properties of a real “justification”? For the man who sees his freedom to make a living blocked, say, by price controls, a weak justification is no justification at all.

In the famous Bakke case (in 1978), Justice Lewis Powell went as far as any judge has gone to show that the wrong of racial preferences is virtually “categorical”—that it involved in different ways the visiting of punishments or disabilities on white students who bore no responsibility for the evils that the policy at hand was seeking to remedy. But apparently the wrong wasn’t really categorical—wrong in all instances—for Powell managed to find theories that could justify these racial preferences in hopes of achieving something called, with more fuzziness than exactitude, “diversity.”

If we understood, for example, that it was in principle wrong, categorically wrong, to kill people on the basis of their race, we would readily grasp that it was quite as wrong to “take race into account” or to “consider race at the margins” in deciding whether or not to kill.

Consider, in contrast, that anchoring axiom of legal and moral judgment: “we ought not hold people blameworthy and responsible for acts they were powerless to affect.” There are no circumstances or contingencies in which that would fail to be true. But the judges have never come to that understanding that the wrong of racial discrimination was indeed categorical in that strict sense.

For that matter, they’ve never shown any accurate understanding of what is meant by a “categorical” proposition in anything but a grammatical form. (“The terms of the President and Vice President shall end at noon on the 20th day of January.”) But in that case, the category of “strict scrutiny” finds no firm anchor. It signals nothing deeply, categorically, wrong; and it explains nothing of the standards that come into play in testing a truly “compelling” justification.

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.

Justice Thomas summed it up with a crisp directness:

The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some constitutional rights are more equal than others. A plaintiff either possesses the constitutional right he is asserting, or not—and if not, the judiciary has no business creating ad hoc exceptions so that others can assert rights that seem especially important to vindicate. A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment. [Italics added.] Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.

But to ask whether a law “infringes a constitutional right, or not” will not depend on any mechanistic reading of the Constitution, nor will it hinge on degrees of justification. It will depend on the same standards of judgment used by ordinary folk, as well as lawyers, as they judge everyday the rules that restrict their freedom, on things smaller or larger— whether with traffic lights or price controls. Is it plainly justified to halt for a moment the liberty to move in traffic? In contrast, is it really as clear that the government knows what price people may rightly charge in selling their chickens?

The laws in Texas, on abortion, should have stirred no doubts either as a measure directed plainly to the safety of women undergoing abortion, or even more plainly, as a policy seeking to divert people from the killing of innocents in the womb.

In the novel Brideshead Revisited, the principal figures, Charles and Julia, make their way up the stairs of the castle to visit the venerable Nanny Hawkins in her quarters. It is wartime and she is listening on the radio to one minister in the government, a figure in the novel, as he castigates Hitler. Nanny Hawkins remarks that if Mr. Hitler could hear Mr. Mottram, and Mr. Hitler spoke English, he would “feel very small.”

If the judges in the majority can still understand ordinary English; if they can read closely the dissent of Justice Thomas in the case of Whole Woman’s Health v. Hellerstedt, and if they can recall enough of the canons of reason that used to mark our jurisprudence, they should feel very small indeed.

Justice Thomas marked, with his opinion in this case, the end of his 25th year on the Court. And he used that moment to speak a bracing truth on the state of mind that has made our jurisprudence the shabby, shallow thing it has become.


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