Equal Protection Clause - Carolene Products and The Various Levels of Equal Protection Scrutiny

Carolene Products and The Various Levels of Equal Protection Scrutiny

Despite the undoubted importance of Brown, much of modern equal protection jurisprudence stems from footnote four of United States v. Carolene Products Co. (1938), a Commerce Clause and substantive due process case. In 1937, the Court (in what was called the "switch in time that saved nine") had loosened its rules for deciding whether Congress could regulate certain commercial activities. In discussing the new presumption of constitutionality that the Court would apply to economic legislation, Justice Harlan Stone wrote:

rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

Thus were born the "more searching" levels of scrutiny—"strict" and "intermediate"—with which the Court would examine legislation directed at racial minorities and women respectively. Although the Court first articulated a "strict scrutiny" standard for laws based on race-based distinctions in Hirabayashi v. United States (1943) and Korematsu v. United States (1944), the Court did not apply strict scrutiny, by that name, until the 1967 case of Loving v. Virginia. Intermediate scrutiny did not command the approbation of a majority of the Court until the 1976 case of Craig v. Boren.

The Supreme Court has defined these levels of scrutiny in the following way:

• Strict scrutiny (if the law categorizes on the basis of race or national origin or infringes a fundamental right): the law is unconstitutional unless it is "narrowly tailored" to serve a "compelling" government interest. In addition, there cannot be a "less restrictive" alternative available to achieve that compelling interest.
• Intermediate scrutiny (if the law categorizes on the basis of sex): the law is unconstitutional unless it is "substantially related" to an "important" government interest.
• Rational-basis test (if the law categorizes on some other basis): the law is constitutional so long as it is "reasonably related" to a "legitimate" government interest.

Although in 1985 the court in City of Cleburne v. Cleburne Living Center, Inc. held that the treatment of developmentally disabled persons were deemed to be subject to a "rational basis" test, in invalidating seemingly rational zoning laws and land use restrictions, many assert that the court introduced an "enhanced" rational basis test that required the state to show more than a facially valid law and instead to balance the community's needs against the needs of the disabled.

There is, arguably, a fourth level of scrutiny for equal protection cases. In United States v. Virginia Justice Ruth Bader Ginsburg, writing for the Court, eschewed the traditional language of intermediate scrutiny for sex-based discrimination and instead borrowed from Justice Sandra Day O'Connor's opinion for the Court in Mississippi University for Women v. Hogan in demanding that litigants articulate an "exceedingly persuasive" argument to justify this kind of discrimination. Whether this was simply a restatement of the doctrine of intermediate scrutiny or whether it created a new level of scrutiny between the intermediate and strict standards is unclear.