Sunday, May 29, 2022
Whither (wither?) Strict Scrutiny?
Professor Gerald Gunther once memorably described strict scrutiny as “‘strict’ in theory and fatal in fact.” And, courts have employed that strict scrutiny to content-based restrictions on free speech, as well as burdens on fundamental rights under both due process and equal protection. It is easy to suppose, even if wrong, that strict scrutiny applies to all fundamental rights.
However, the Supreme Court has adopted different standards for different constitutional rights that make such a knee-jerk response to the presence of a fundamental right the wrong move. For example, the free-exercise clause in a much-criticized decision written by Justice Scalia limited the scope of this protection by requiring the state action to target religion or a religion for different treatment, as opposed to being a valid, neutral law of general applicability. The Seventh Amendment’s jury-trial right also eschews strict scrutiny in favor of a historical test.
Recently, a concurring opinion (to his own majority opinion) by Eleventh Circuit Judge Kevin Newsom speculated on the proper test for the Second Amendment. He rejected one based on levels of scrutiny because the majority in District of Columbia v. Heller expressly shunned any type of “judge-empowering ‘interest-balancing inquiry.’” 554 U.S. at 634.
Newsom instead endorsed a view he credits to a Justice Kavanaugh dissent written when Kavanaugh sat on the D.C. Circuit. That opinion stated that “courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” Newsom, though, is not entirely happy with that formulation. He questions its inclusion of “tradition” as a metric. As he explains, if tradition represents the original public meaning, it duplicates what history provides. If it “expand[s] the inquiry beyond the original public meaning—say, to encompass latter-day-but-still-kind-of-old-ish understandings—it misdirects the inquiry.”
Newsom adds a “bookmark for future reflection and inquiry than anything else” to his opinion. He states that it is problematic to reject balancing tests in the context of the Second Amendment, yet still apply it to other fundamental rights. Using the First Amendment as an example, he criticizes the balancing tests adopted there as “so choked with different variations of means-ends tests that one sometimes forgets what the constitutional text even says.” He says that the “doctrine is judge-empowering and, I fear, freedom-diluting.” He suggests that “bigger questions” need to be raised to decide whether applying scrutiny at any level should continue.
The concurrence is provocative and suggests that the roiling of doctrine in other areas of law may extend to how courts should view fundamental rights. However, there is no holy grail that reduces judicial discretion in favor of assuring liberty. Construing constitutional rights is no less subject to manipulation based on a judge’s views if the judge subscribes to the original public meaning school of interpretation, rather than balancing tests. Newsom appears to agree that Heller “was perhaps ‘the most explicitly and self-consciously originalist opinion in the history of the Supreme Court.’” Yet, Heller adopted a historical analysis others have criticized as skewed to obtain a result. Those who expect the pending SCOTUS decision in N.Y. St. Rifle & Pistol Ass’n, Inc. v. Bruen before the Supreme Court to invalidate New York’s century-old restrictive gun law recognize that history supporting the type of government authority the statute represents is likely to make little difference to the majority. And, original public meaning cannot reflect our rejection of ideas about race and gender from the founding period.
So, what should we make of Newsom’s concurrence? The opinion seems further evidence that nothing about our approach to constitutional law is settled – and the questioning of strict scrutiny as an interpretative tool is only beginning.
 Gerald Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972).
 See City of Austin, Texas v. Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464, 1471 (2022); Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987).
 Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997).
 See Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976).
 Emp. Div., Dep’t of Hum. Res. of Oregon v. Smith, 494 U.S. 872, 879 (1990).
 Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 (1996).
 United States v. Jimenez-Shilon, No. 20-13139, 2022 WL 1613203, at *7 (11th Cir. May 23, 2022) (Newsom, J., concurring).
 554 U.S. 570 (2008).
 Jimenez-Shilon, 2022 WL 1613203, at *8 (Newsom, J., concurring).
 Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1271 (D.C. Cir. 2011) (Kavanaugh, J., dissenting).
 Jimenez-Shilon, 2022 WL 1613203, at *8 n.2 (Newsom, J., concurring).
 Id. (Newsom, J., concurring).
 Id. (Newsom, J., concurring).
 Id. at *9 (Newsom, J., concurring).
 Id. at *10(Newsom, J., concurring).
 Id. at *11 (Newsom, J., concurring).
 Id. at *8 (Newsom, J., concurring) (quoting United States v. Skoien, 614 F.3d 638, 647 (7th Cir. 2010) (en banc) (Sykes, J., dissenting)).
 See, e.g., J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 254 (2009); Mark Anthony Frassetto, Judging History: How Judicial Discretion in Applying Originalist Methodology Affects the Outcome of Post-Heller Second Amendment Cases, 29 Wm. & Mary Bill Rts. J. 413 (2020).
 No. 20-843.