Wiping Away the Tiers of Judicial Scrutiny

Abstract

Throughout much of constitutional law and beyond, courts often decide cases by applying some form of tiered or multi-level judicial scrutiny. The prominence of tiered scrutiny conceals, however, a number of important problems. The undue complications, manipulability, commonly mistaken emphases, and other costs of tiered scrutiny are by now conspicuous and remarkable. Tiered scrutiny review has by now decayed to the point at which its use is no longer justifiable. Among other basic problems, tiered scrutiny now offers only the appearance, but not the reality, of reasonable efficiency and of appropriate constraint on judicial subjectivity and discretion. The practice of tiered scrutiny today clearly undermines several basic rule of law principles. This Article suggests that a simpler, more rule of law-friendly substitute for tiered scrutiny is realistically available, and that such a substitute can also encourage more pragmatically effective law-making.