Law Commons^™

Wiping Away The Tiers Of Judicial Scrutiny, R. George Wright

St. John's Law Review

(Excerpt)

Throughout much of constitutional law and beyond, courts often decide cases by applying some form of tiered or multilevel judicial scrutiny. Tiered scrutiny exhibits remarkable variability and complexity. At its simplest, tiered scrutiny involves a judicial inquiry into the legitimacy and the degree of importance of some public goal purportedly furthered by the government policy at issue. The courts then typically undertake a second step, inquiring into the degree of “tailoring” of the government policy— namely the policy’s overinclusiveness or underinclusiveness relative to its supposed purpose. This simplified account of tiered scrutiny conceals, however, a number of important problems. …