Bobby Lipkin writes: > 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. 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. Hi
I don't think the choice is a monolithic one between no deference (court gives no weight to government's judgments) or complete abdication ( government not even required to articulate a rationale for its decision). Rather there are degrees of deference. For example, even if the Court itself decides all open questions de novo, it might (should?) still take the government's prior decisions or judgments into account. For example, the Court might give some weight to the government's educational judgment of what "critical mass" is required for the educational benefits of diversity to kick in. But strict scrutiny has to permit less than complete de novo judicial decisionmaking in which the Court simply takes over the government's decisionmaking. The Court has to give some deference to the government's factual and policy judgments, notwithstanding the Court's high degree of skeptcism of such decisions under strict scrutiny. Otherwise, strict scrutiny requires the Court to take over the government. In the educational context, for example, couldn't the Court defer to educators' judgment, for example, on the question of whether a particular nondiscriminatory means will in fact achieve the government's compelling interest, perhaps requiring government to provide a highly persuasive justification for its conclusion based upon evidence in the record. I don't think such limited deference is incompatible with the high level of skepticism required of strict scrutiny. ( I know this starts to approach the VMI analysis for gender's intermediate scrutiny, but I don't think the gender/race level of scrutiny is in practice particularly distinguishable.) Contrast, Korematsu, for example, in which the Court simply accepted wholesale, without any justification, government blanket assertions that the wholesale removal of an entire ethnic group from a five state area was necessary to protect national security interest. I agree Korematsu's deferential review was not strict scrutiny, and maybe Grutter arguably goes too far. But that doesn't mean that strict scrutiny precludes all deference. yb . ********************************************* Professor Yvette M. Barksdale Associate Professor of Law The John Marshall Law School 315 S. Plymouth Ct. Chicago, IL 60604 (312) 427-2737 (email:) [EMAIL PROTECTED] ***************************************************** > ---------- > From: Robert Justin Lipkin[SMTP:[EMAIL PROTECTED] > Reply To: Discussion list for con law professors > Sent: Wednesday, June 25, 2003 9:51 AM > To: [EMAIL PROTECTED] > Subject: Re: Puzzles re: Grutter and Korematsu > > 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 >
