![]() Not surprisingly, some academics insist that tiered scrutiny is nothing more than a theoretical smoke screen for bare judicial preference. ![]() These categories are a matter of judicial construction-nothing in the text demands the application of tiers. The theory allows the Court to distinguish between strongly and weakly protected rights, and between protected and unprotected classes. Tiered scrutiny has long been controversial. Currently, the Court applies the lowest tier of judicial scrutiny in cases involving challenges to economic legislation and applies the highest tier in cases involving judicially identified “fundamental rights.” So much so, that the government can generally expect to win in cases involving the lowest tier of judicial scrutiny (“rational basis review”), and to lose in cases where they face the highest tier (“strict scrutiny,” sometimes referred to as “strict in theory, fatal in fact”). Similarly, the Court requires little justification for government regulation of drugs, but requires compelling justification for the regulation of speech.Īpplying different levels of scrutiny or tiers of review obviously can make a great deal of difference to the outcome of the case. For example, the Supreme Court requires very little justification for government discrimination on the basis of income (e.g., our progressive income tax), whereas it requires an extremely persuasive justification for government discrimination on the basis of race. In American constitutional law, it is common to speak of “levels of scrutiny” or “tiers of judicial review.” The terms refer to the degree to which the courts require government justification for a challenged law or action.
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