Are Constitutional Tests “Waning”?

November 9th, 2011

Mike Dorf thinks so:

The Supreme Court has become increasingly indifferent to the application of the multi-part, multi-stage “tests” that came to characterize its constitutional jurisprudence in the 1970s and 1980s.  Seen in this perspective, the Court’s tendency to sometimes-apply/sometimes-ignore the Lemon/endorsement test is of a piece with similar trends in other areas of constitutional law.  Thus, Planned Parenthood v. Casey doesn’t say that abortion is no longer a fundamental right but doesn’t exactly apply strict scrutiny either; Romer v. Evans says that Colorado’s Amendment 2 “defies” the Court’s equal protection jurisprudence and so the Court strikes it down applying what commentators have sometimes called “rational basis scrutiny with teeth”; at the other end, the Court in Grutter v. Bollinger applies what it calls strict scrutiny, albeit in a way that is more deferential to government employing an assertedly benign racial classification than it applies in cases involving challenges to laws disadvantaging racial minorities; Lawrence v. Texas overrules Bowers v. Hardwick, which had held that same-sex intimacy is not a fundamental right, butLawrence does not clearly state that it is a fundamental right; and District of Columbia v. Heller invalidates the District’s handgun ban, criticizing the dissent’s proposed application of rational basis scrutiny, while abjuring the need to specify the level of scrutiny it is applying, even while announcing a number of seemingly ad hoc conclusions about the constitutionality of various gun regulations not before the Court.

Perhaps the foregoing are isolated instances of the Court departing from principle, but these are all important, high-profile cases of the sort that appeared to be governed by, or that seemed to call for the formulation of, a doctrinal test. Yet in each — and in satellite cases in both the Supreme Court and the lower courts — questions about what test applies seem not to play much of a role, if any.

And note an oddity: Formal tests have come to play a decreasingly important role in the Court’s constitutional rights jurisprudence during the very same period that textualism has come to play an increasingly important role in statutory cases.  Yet the reliance on rule-like tests and textualism are both versions of formalism.  Why would formalism wane in constitutional rights cases just as it has been waxing in statutory cases?

Dorf thinks the old-styled tests were “actually reasonably determinate” but the Justices “moved away from the tests” when they didn’t like the results.