A Hard Look at Exacting Scrutiny

Abstract

To this point, the judicial test of exacting scrutiny has been applied most frequently in electoral campaign funding and variously related cases. But exacting scrutiny should certainly not be thought of as applicable only to campaign or election-related cases. Nor, even more importantly, should exacting scrutiny be thought of as either a synonym for traditional strict scrutiny, or as an awkward compromise between traditional strict judicial scrutiny on the one hand and either mid-level or minimum scrutiny on the other. Once this Article establishes a preliminary understanding of exacting scrutiny, the Article then turns more particularly to the relationship between exacting scrutiny and the proportionalist, balancing-oriented, multi-faceted, and checklist-style jurisprudence often favored by, most prominently, Supreme Court Justice Stephen Breyer. As it turns out, Justice Breyer's scholarship, and his judicial decisions in particular contexts, supply some impetus for applying exacting scrutiny, but only to a limited degree. The Article then addresses some broader questions of exacting scrutiny in the contexts of constitutional rights absolutism; of entirely unfettered balancing; of problems of commensurability and the more general comparability of values, rights, and interests; and of the problem of case outcome unpredictability and indeterminacy. On this basis, the Article then ventures a summary of the most significant advantages and disadvantages of a broad judicial recourse to exacting scrutiny. As it turns out, the judicial standard of exacting scrutiny attractively offers the advantages of formulaic simplicity, built-in normativity, ready understandability, almost limitless flexibility, potential sensitivity to all relevant claims of right and interest, and a potentially universal scope and application.