The Structure of Rational Basis and Reasonableness Review

In Whole Woman’s Health v. 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. Ct. 2292, 2327 (2016), quoting United States v. Virginia, 518 U.S. 515, 567 (1996) (Scalia, J., dissenting). Justice Thomas added, “But the problem now goes beyond that. If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result. . . . [M[ore recent decisions reflect the Court’s tendency to relax purportedly higher standards of review for less-preferred rights. . . . 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. Maryland, 366 U.S. 420, 426 (1961). A number of commentators have raised similar concerns about the Court’s use of existing standards of review and whether sometimes that rational basis review has some “bite.” See, e.g., Robert C. Farrell, Equal Protection Rational Basis Cases in the Supreme Court Since Romer v. Evans, 14 GEORGETOWN J.L. & PUB. PLY. 441, 442-43 (2016) (discussing a rational basis standard “with bite”); Raphael Holoszyc-Pimentel, Reconciling Rational-Basis Review: When Does Rational Basis Bite?, 90 N.Y.U. L. Rev. 2070, 2071-76 (2015) (same). Recent books also continue to comment on “heightened rational basis scrutiny” under the Equal Protection Clause. See, e.g., RANDY E. BARNETT & JOSH A. BLACKMAN, 100 CONSTITUTIONAL LAW CASES EVERYONE SHOULD KNOW 215-19 (2019). Despite these concerns, careful attention to the Court’s decisions reveals a predictable and principled structure to the Court’s existing standards of review. The intent of this article is address to 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.” Justice Thomas’ criticism in point about the malleability in selecting which standard of review to adopt will be 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” will be 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 http://libguides.stcl.edu/kelsomaterials. In responding to Justice Thomas’ point criticism of the lack of the “scientific nature” of the standards of review, Part II of this article discusses the differences between: (1) rational basis review, sometimes called “minimum rationality review,” used for review of standard social or economic regulation under the Equal Protection Clause and Due Process Clauses (5th and 14th Amendment); (2) a higher level of scrutiny used by the Court under the Due Process Clauses and in many other cases, called in this article “reasonableness balancing”; and (3) the structure of “higher levels” of review, such as (a) intermediate review and (b) strict scrutiny. Parts III and IV of this article then address Justice Thomas’ point criticism about selective application of rational basis review. The argument in Part III is that, despite the argument of Justice Thomas and some commentators to the contrary, in cases involving standard social or economic regulation under the Equal Protection Clause the Supreme Court has been careful since 1937 to use only “minimum rationality review,” not any heightened rational review or rational review with bite. Part IV makes the same argument with respect to the Due Process Clauses. Part V of this article then describes those areas of the law where the Court does use the higher level of “reasonableness balancing” review, also called in this article “2nd-order reasonableness review.” This review involves cases dealing with less than substantial burdens on un-enumerated fundamental rights under the Due Process Clauses, but also involves some cases under the Dormant Commerce Clause, the Contract Clause, cases dealing with excessive punitive damage awards under the Due Process Clauses, and the Takings Clause. This review also involves First Amendment non-viewpoint based regulations of speech in a nonpublic forum and Procedural Due Process analysis. Part VI of the article then addresses the fact that in some “reasonableness balancing” cases the Court has shifted the burden from the challenger to prove the government action is “unreasonable” to requiring the government to prove the action is “reasonable.” Because this shifting of the burden of proof imposes a greater challenge for the government to justify its course of action, this article calls this level of review “3rd-order reasonableness review,” or “heightened reasonableness balancing.” Finally, Part VII responds to Justice Thomas’ examples in Hellerstedt where he questioned whether the Court has been principled in applying the standards of review. Part VIII provides a brief conclusion.