Re: Puzzles re: Grutter and Korematsu

[Robert Justin Lipkin]

In a message dated 6/24/2003 8:05:18 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:

As to whether a uniform level of deference should apply whenever the  "strict scrutiny" label is used, I think it can't if you want to make wise and just decisions.

       My original post asked whether deference, conceptually if not practically, could be part of strict scrutiny at all. Both Grutter and Korematsu seem to rely on deference as an integral feature of strict scrutiny in equal protection cases. The point of strict scrutiny, as it has developed over the years, seems to rule out deference.  (How can the Court defer to the state when the state is the defendant charged with racial discrimination?) Yet, both the first case and one of the most recent cases depend on deference in their rationale. Doesn't anyone find this odd? Or to put this point differently, since deference, typically, is a primary feature of rational basis scrutiny, isn't it (at least) presumptively odd to find it (in a particular case) an essential feature of strict scrutiny also?


Bobby Lipkin
Widener University School of Law
Delaware