The Structure of Intermediate Review

This article will be published in 25 Lewis & Clark L. Rev. No. 3 (2021). 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). Despite these concerns, careful attention to the Court’s decisions reveals a predictable and principled structure to the Court’s existing standards of review. 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” are addressed in a separate article entitled, “The Structure of Rational Basis and Reasonableness Review.” Justice Thomas’ criticism in point about the malleability in selecting which standard of review to adopt is 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” are 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. This article addresses “The Structure of Intermediate Review.” Today, there are two well-established versions of intermediate review: (1) standard intermediate review used for cases like (a) gender or illegitimacy discrimination under the Equal Protection Clause, based upon Craig v. Boren, or (b) content-neutral regulations of speech in a public forum, based upon cases like Ward v Rock Against Racism; and (2) a heightened intermediate review standard used for content-based, subject-matter regulations of commercial speech under Central Hudson Gas & Electric Co v. Public Service Commission of New York. In actual use, four other kinds of intermediate review tests have been used by the Court in some cases. These four can be viewed as “mutations” of the two kinds of intermediate review proper to apply. These four mutations involve: (1) a “hybrid” kind of reasonableness balancing/intermediate review used in some cases involving the Second Amendment right to bear arms, as in NRA of America, Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, or for a while under the commercial speech doctrine stated in Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico; (2) a “watered-down” intermediate review, used occasionally in cases like City of Erie v. Pap’s A.M., involving content-neutral regulation of sexually oriented businesses, or Clark v. Community for Creative Non-Violence, involving protests activities in public parks; (3) heightened “exceedingly persuasive” intermediate review used in United States v. Virginia, a case involving gender discrimination under the Equal Protection Clause; and (4) a heightened intermediate review kind of test used for content-neutral injunctions on freedom of speech in Madsen v. Women’s Health Center, Inc. Part II of this article will discuss the two well-established kinds of intermediate review. This discussion will provide detailed treatment of a structured approach to phrasing and applying these standard kind of intermediate review tests. Following this discussion, Part III will discuss: (1) the “hybrid” kind of intermediate review. Part IV will address (2) the “watered-down” kind of intermediate review. Part V will discuss (3) the “exceedingly persuasive” kind of intermediate review. Part VI will discuss (4) intermediate review in the context of injunctions on speech. Following this analysis, Part VII will discuss other doctrinal approaches to intermediate review occasionally suggested by members of the Court and will conclude that these other approaches, as well as the four mutated kinds of intermediate review, should be rejected, and that the first three of these mutated anomalies should adopt standard intermediate review, and the fourth should adopt the established heightened intermediate review of Central Hudson. Part VIII will provide a brief conclusion.