Throughout much of constitutional law and beyond, courts often decide cases by applying some form of tiered or multilevel judicial scrutiny. Tiered scrutiny exhibits remarkable variability and complexity. At its simplest, tiered scrutiny involves a judicial inquiry into the legitimacy and the degree of importance of some public goal purportedly furthered by the government policy at issue. The courts then typically undertake a second step, inquiring into the degree of “tailoring” of the government policy— namely the policy’s overinclusiveness or underinclusiveness relative to its supposed purpose. This simplified account of tiered scrutiny conceals, however, a number of important problems. The undue complications, manipulability, oft-mistaken emphases, and other costs of tiered scrutiny are, by now, conspicuous and remarkable. Tiered scrutiny review has decayed to the point to which its use is no longer justifiable.
Among other basic problems, tiered scrutiny now offers only the appearance, but not the reality of, reasonable efficiency and appropriate constraint on judicial subjectivity and discretion. The practice of tiered scrutiny today clearly undermines several basic rule of law principles. This Article suggests that a simpler, more rule of law-friendly substitute for tiered scrutiny is realistically available, and that such a substitute encourages more pragmatic lawmaking.
This Article thus recommends replacing today’s readily manipulable and otherwise crucially defective tiered scrutiny analysis with a substitute requiring fewer and better-working parts. In particular, this Article recommends a stronger judicial concern for a legislative policy’s actual effectiveness in practice and far less concern for questions of tailoring. This Article also recommends a more serious judicial accommodation of constitutionally fundamental rights.
The aim of these recommended revisions is to channel judicial scrutiny in the most useful directions, to simplify and appropriately constrain judicial analyses, to encourage substantially effective legislative policies, and to otherwise better promote basic rule of law values. None of these suggested reforms would authorize courts to usurp the proper legislative role or otherwise empower courts to stray beyond the area of judicial competency by second-guessing calculations of policy costs or by performing general cost-benefit analyses of statutes and regulations.