Re: Puzzles re: Grutter and Korematsu

[Robert Justin Lipkin]

       Sorry, my last post was unclear.  I meant to indicate three points operating (at the time of my original post) in this thread: (1) Is there a general account (or for that matter any account at all) of when (how?) deference is permissible when strictly scrutinizing government action; or, for short, how is deference compatible with strict scrutiny? (2) Is there a uniform standard of strict scrutiny?  And (3) Should we trust the courts to protect us from tyrannical majorities?  My original post centered only on (1). Others brought into the thread (2) and (3) and I picked them up.

       Many of the posts in this thread suggest that using deference in applying 'strict scrutiny' simply means that one is not really applying strict scrutiny.  I suppose that's correct.  But if it is correct then deference cannot be the distinguishing feature between strict scrutiny and rational basis scrutiny. If this is right how does one explain Justice O'Connor rejecting the idea that her application of strict scrutiny is not less strict because it is deferential.  Is she just trying to hoodwink us?  Is she just wrong, confused, etc., or is there some other possible explanation?

       In my own view, I agree with Sandy that questions (2) and (3) are mostly empirical questions.  Yet, there remains a conceptual feature in answering these (and any other) empirical questions. In the case of (3), the argument is clearly in part conceptual because we should examine different political theories of government and social organization to determine whether in theory they imply that courts should defend citizens against tyrannical majorities.  Some political theories in there own (conceptual) terms might be better candidates for protecting minorities than others.  But Sandy is right that the bottom line concerning whether we can trust courts in the American context is empirical.

Bobby Lipkin
Widener University School of Law
Delaware