Strange Bedfellows #1: Levels of Scrutiny (or, Thoughts in Carolene Products, Skinner, Korematsu, and Barnette)

For those accustomed to the silo method, this collection of cases will seem really weird.  “Barnette is a First Amendment case! Skinner is a fundamental rights case!  Hirabayashi and Korematsu are equal protection cases! Carolene Products is an economic substantive due process case! They don’t belong together!” Actually, they teach extremely well together, because each deals with the central question of choosing the appropriate level of judicial scrutiny.  Do some types of cases deserve more intense judicial review than others?

In the spring of 1937 the reasoning of the Lochner era came crashing down, and with it the Supreme Court’s commitment to skeptical review of economic legislation (whether that review involved the Commerce Clause, the Due Process Clause, or other areas of doctrine).  Carolene Products (1938) is part of that story, announcing a very deferential form of rational basis review for economic regulation, but including a footnote suggesting that courts might choose to be more stringent in individual rights cases.  Rather quickly—within the next six years, in fact—the Court had to decide if it was really going to adopt a two-level approach.


Reading Skinner (1942), the Internment Cases (1943 and 1944), and Barnette (1943) as part of this same question helps make sense of the choices made in those decisions.  Barnette, in particular, loses much of its power if it is saved purely for a First Amendment discussion.  The bulk of Justice Jackson’s opinion is devoted not to First Amendment reasoning, but to the propriety of the Court ever enforcing individual rights.  In stirring language, the majority concluded that judges were required to enforce the bill of rights vigorously.  Justice Frankfurter’s dissent is premised on the notion that the Constitution does not award the Supreme Court “greater veto power when dealing with one phase of ‘liberty’ than with another.” It's a case about judicial review that only happens to involve freedom of speech and religion.

Skinner (a eugenic sterilization case) is the first appearance of the term “strict scrutiny” and hence is a natural for any exploration of the rise of different levels of scrutiny.  The debate between the majority’s choice of an equal protection framework and the concurrence’s preference for a due process framework can be explained in part because the majority wanted to apply a stricter scrutiny, and felt that the Equal Protection Clause, rather than the Due Process Clause, made it possible.

My casebook also includes the Japanese Internment cases as part of this debate.  In Hirabayashi (upholding a curfew applicable to persons of Japanese ancestry), the Court expressly looked only for a rational basis behind the law.  Korematsu, a year later, expressly said that racial classifications are “immediately suspect” and subject to “most rigid scrutiny.”  That decision is widely viewed as a misapplication of strict scrutiny, but its choice of that frame was momentous.

In my experience, students make the connections quite readily. The interleaving of multiple doctrines (speech, due process, equal protection) as a way to explore a larger legal concept (levels of scrutiny) poses no problems.  In particular, it does not harm their later ability to properly cite the right case for the right principle in an exam.  Given that these cases all arose in the same historical time frame, there are huge benefits in combining them into a single unit.