Re: Puzzles re: Grutter and Korematsu

[Sanford Levinson]

Bobby Lipkin asks:

First, is there a uniform standard of strict scrutiny? Second, should we trust the courts to protect us from tyrannical majorities. 

In form these are empirical questions, not conceptual ones.  And I think that the answers are all too easy.  The answer to both is no.  With regard to strict scrutiny, as I note in my prior posting this morning, no one could possibly believe that O'Connor's invocation of "strict scrutiny" in her Smith concurrence is anything like her scrutiny in, say, Croson.  As to the second, I think there is scant evidence that the courts have consistently protected "us"--presumably vulnerable minorities--from tyrannical majorities.   If a majority is truly "tyrannical," why would it countenance a judicial system that systematically acted counter to its strong preferences?  Courts have reasonably often protected locally vulnerable minorities from local tyrannies, but, as my colleague Scot Powe points out in his superb book on the Warren Court, they were usually reflecting  the presumably more enlightened views of national majorities.

sandy