Re: Puzzles re: Grutter and Korematsu

[Robert Justin Lipkin]

       I think there are at least two points operating in this thread.  First, is there a uniform standard of strict scrutiny? Second, should we trust the courts to protect us from tyrannical majorities.  My original post, concerning the first point,  doesn't require (or reject) a uniform standard for strict scrutiny.  My concern is that in two terribly important cases, Korematsu and Grutter, strict scrutiny adopts, at least in part, a deferential standard.  And that deference is the sine qua non of  rational basis scrutiny. Thus, the question of a uniform standard is pretty much irrelevant to my concern regarding the first issue. One can insist on a uniform standard or reject a uniform standard, and still raise my question of whether there is a problem of courts using the notion of deference, and using it explicitly, when applying strict scrutiny.

       The answer to the second query, of course, is much more complex, and I find myself thinking about an answer more and more lately.  For now I'll simply say that deliberative democracy, even republicanism, can be the form of America's conception of self-rule without the present institution of juridical review/supremacy. In other words, there may be other institutions for tempering the 'wrongs' of the majority consistent with deliberative democracy and republicanism that do commit us to an institution of unelected, virtually unaccountable, 'legislators' who can in the blink of an eye overturn the results of the elected branches of government in both federal and state cases.  As everyone knows, this is an awesome power, and it's becoming less and less clear to me how such an awesome power is consistent with deliberative democratic or republican forms of self-rule.

Bobby Lipkin
Widener University School of Law
Delaware