On further reflection of my previous post about the relationship between social cost and strict/rational basis scrutiny, I think that Courts aren’t trying to maximize liberty or safety, or acting in a majoritarian or countermajoritarian fashion. Rather they are trying to minimize the social costs that result from the excesses of too much liberty or too much safety. Social cost can be seen as the primary determinant of when the court is willing to push back against the individual or the state.

But how is social cost defined? I am going to punt on this question, but for a very good reason; it doesn’t matter what I (or any other scholar thinks). The Court determines what the social cost is, often in concern with, or in opposition with, what the other branches find. What matters is social cost as viewed by Article III.

In an article I co-authored about separation of powers, I contended that the Court has adopted an implicit fourth tier of Youngstown where the Justices aim to probe exactly what the scope of the President’s unenumerated Article II powers are (too much, or too little):

This zone of insight reflects the contemporary Court’s desire to perceive and penetrate the President’s unenumerated Article II powers in an intuitive manner. Defining the scope of the President’s unenumerated Article II powers, however, especially those powers that touch upon national security and war-time issues, could potentially hamper the President’s powers during future conflicts. Therefore, rather than adhering to formalist notions of the separation of powers between Congress and the President, this zone of insight focuses exclusively on probing the contours of what the President can do, and more importantly, what he cannot do. This methodology embodies the pinnacle of judicial functio- nalism.

Ultimately, a Court’s decision to look to their own wisdom–dare I say their personal policy preferences–is based on a decision of whether the liberty interest at issue, or alternatively the state’s power imposes too much social costs. In separation of powers cases (thinks Detainee cases), the Court is really assessing the President’s Article II powers–not based on Congressional authorization (Tiers 1-3)–but based on the Court’s own understanding of the appropriate level of social cost of executive action. “In recent cases, however, rather than actually ruling on the balance between Congress’ Article I powers and the President’s Article II the Supreme Court instead has weighed the President’s actions against the Court’s own sense of the proper balance of separation of powers.”

Courts agree with legislative findings when courts do not see too many social costs from the government power (this is rational basis deference). Alternately,  courts are skeptical of legislative findings when court sees too many possible social costs that result from too much government power (this is strict scrutiny, without deference). The  key is social cost based on the court’s own determination and that determines whether the Court defers or is skeptical.