Why Did McCullen Recharacterize the levels of 1st Amendment Scrutiny?

July 14th, 2014

Will Buade draws attention to an interesting aspect of McCullen v. Coakley–it described the analyses in Holder v. Humanitarian Law Project and McCutcheon in terms of scrutiny, something those cases did not do.

Holder v. HLP did not use the word “Strict scrutiny” or “compelling interest” or “narrowly tailored.” But in describing the case, the McCullen Court did:

It is not unu­sual for the Court to proceed sequentially in applying a constitutional test, even when the preliminary steps turn out not to be dispositive. See, e.g., Bartnicki v. Vopper, 532 U. S. 514, 526–527 (2001); Holder v. Humanitarian Law Project, 561 U. S. 1, 25–28 (2010) (concluding that a law was content based even though it ultimately survived strict scrutiny).

Same for McCutcheon, which declined to speak of a tier of scrutiny. But McCullen labelled it as “intermediate scrutiny.”

The Court does sometimes assume, without deciding, that a law is subject to a less stringent level of scrutiny, as we did earlier this Term in
McCutcheon v. Federal Election Commission, 572 U. S. ___, ___ (2014) (plurality opin­ion) (slip op., at 10). But the distinction between that case and this one seems clear: Applying any standard of review other than intermediate scrutiny in McCutcheon—the standard that was assumed to apply—would have re­quired overruling a precedent.

Will observes:

I confess, I found both of these characterizations a little surprising. I had thought that both McCutcheon and Humanitarian Law Project went out of their way to avoid using terms like “strict scrutiny” and “intermediate scrutiny.” But I guess I was wrong, and the terminology turned out not to be so important after all. (For what it’s worth, all three opinions — McCullen, McCutcheon, and Humanitarian Law Project — were written by the Chief Justice.)

While it is true that all three were written by the Chief, not all three were unanimous.

McCutcheon was 5-4, with the Chief writing for Scalia, Kennedy, Thomas, and Alito. Holder v. HLP was 6-3, with the Chief writing for Stevens, Scalia, Kennedy, Thomas, and Alito. RBG, Breyer, and Sotomayor were in dissent.

Perhaps one of the dissenting Justices from Holder v. HLP (or Justice Kagan), who is more enamored by the tiers of scrutiny and their labels, urged the Chief to modify this characterization of the earlier cases. This may be a simple enough edit for one Justice to request, and to keep the Court unanimous, I would imagine the Chief would gladly oblige.

I’ve argued in a long series of posts, and this article (which is almost done!) that the tiers of scrutiny have fallen out of relevance in recent years in terms of equal protection and due process. Maybe one of those Justices is trying to push back.