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The Tiers of Scrutiny: A Public Choice Analysis
Mike Rappaport

In a prior post, I discussed Justice Clarence Thomas’s criticism of the Supreme Court’s tiers of scrutiny jurisprudence.  Given Thomas’s criticism of the tiers as both made up and inconsistently applied, one might wonder why the Supreme Court follows this approach.  My explanation is one that relies on a public choice theory of the justices.  The Supreme Court follows this approach because it enhances – perhaps maximizes – its power.

One might question that the Supreme Court’s power is enhanced by the tiers of scrutiny jurisprudence.  After all, the tiers seem to involve rules of a sort that would arguably limit the discretion of the court.  If racial classifications are subject to strict scrutiny, it makes it difficult for the Court to allow them, even the ones that the Court might approve of.  Instead, a Court seeking to maximize its discretion would employ entirely vague standards – or individual edict like judgements – so that it could do as it pleased.

There are, however, two problems with this approach.  The major problem is that this approach would make it difficult for the Supreme Court to control the lower courts.  The Supreme Court cannot review every decision of the lower courts.  In fact, it can only review a small percentage of their decisions, even in the politically salient cases.  The tiers of scrutiny – as well as doctrine generally – is a device the Court uses to control the lower courts.  This seemingly rule like jurisprudence places real limits on the inferior courts.

Another problem with exceedingly vague standards is that it would reduce the legitimacy of the Supreme Court.  If the Court were seen as simply announcing its preferences, that would reduce its legitimacy. If the Court can argue that its decisions follow from more general principles, it can be seen as enforcing a prior jurisprudence.

While this approach has these advantages for the Supreme Court, it also is not all that constraining in the way that the Court implements it.  As Justice Thomas suggested, the Supreme Court applies the approach in an inconsistent way, thereby generally allowing it to reach the results it prefers.