Fatal in theory and strict in fact: An empirical analysis of strict scrutiny in the federal courts

Vanderbilt Law Review

Volumn 59, Issue 3, 2006, Pages 793-871

  Winkler, Adam ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 33750016352     PISSN: 00422533     EISSN: None     Source Type: Journal    
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References (372)

1. Gerald Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972).
2. Peter J. Rubin, Reconnecting Doctrine and Purpose: A Comprehensive Approach to Strict Scrutiny After Adarand and Shaw, 149 U. PA. L. REV. 1, 4 (2000).
3. See Turner v. Safley, 482 U.S. 78, 89 (1987) ("Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration.").
4. See Richard Fallon, The Supreme Court, 1996 Term - Foreword: Implementing the Constitution, 111 HARV. L. REV. 54, 79 (1997) ("'strict in theory' will routinely prove 'fatal in fact'").
5. 515 U.S. 200, 237 (1995).
6. Id. at 230.
7. 539 U.S. 306, 326-28 (2003).
8. Id. at 327 (quotations omitted).
9. Id.
10. As a judicial standard, "strict scrutiny" did not originate with twentieth-century constitutional controversies. In the 1800s, courts employed that terminology in equity cases of debtors who attempted to protect property from creditors by transferring it in suspicious circumstances, such as a sale to another family member. When, for example, a man conveyed a parcel of land to his wife ten days prior to the entrance of a judgment against him in favor of a creditor, the Georgia Supreme Court wrote in 1876 that "[c]ontracts between [relatives] which retain in the family property that would otherwise go to satisfy honest creditors are to be subjected to strict scrutiny - a vigilant judicial police." Booher v. Worrill, 57 Ga. 235, 238 (1876) (emphasis added). According to the court, strict scrutiny meant that only "slight evidence" of fraud brought to the court's attention will "change the onus," shifting the burden of proof to "the conjugal pair" to show "the genuineness and good faith of the transaction." Id. (emphasis added). As the Nebraska Supreme Court explained in 1894, "conveyances by and transactions between a failing debtor and his relatives are always suspicious and to be regarded with strict scrutiny, and such transactions are badges of fraud, unless clearly explained." Altschuler v. Coburn, 38 Neb. 881, 889 (1894); see also Greer v. Altoona Warehouse Co, 20 So. 2d 513, 514-15 (Ala. 1945) ("After the complainant proved the existence of its debt, antedating the conveyance of Greer to his wife, the defendants had the burden of proving the bona fides of the consideration and that it was not greatly disproportionate to the value of the property conveyed, and the evidence offered is subject to strict scrutiny because of the family relations."); Paddock v. Pulsifer, 23 P. 1049, 1051 (Kan. 1890) ("[W]here a parent, through extreme age and infirmity, has become childish, and depends upon her son for advice in all her affairs, contracts made by her in his favor are subject to the same strict scrutiny given to contracts of children in favor of their parents."); Gish v. Unruhan, 165 P.2d 417, 418 (Kan. 1946) (Another rule, here pertinent, is that on an issue of this sort conveyances between members of a family are properly subjected to strict scrutiny.").
11. 304 U.S. 144, 152 n.4 (1938).
12. Id. at 145.
13. The other cases were W. Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), and Nat'l Labor Relations Bd. v. Jones & Laughlin, 301 U.S. 1 (1937).
14. 198 U.S. 45 (1905).
15. Lewis F. Powell Jr., Carolene Products Revisited, 82 COLUM. L. REV. 1087, 1087 (1982).
16. Carolene Prods., 304 U.S. at 152-53, n.4 (emphasis added).
17. In some ways, Carolene Products was less an introduction of the notion of exacting constitutional scrutiny and more a change in focus in how such review would be applied. The judiciary had long reviewed legislation by examining the asserted government purposes and the reasonableness of the chosen means. During the Lochner era itself the Supreme Court employed something akin to "exacting" scrutiny of economic legislation. The Lochner era Court required a "reasonable relationship" between economic legislation and "some purpose within the competency of the state" - language similar to today's rational basis test - while insisting upon an acutely narrow view of what counted as a legitimate purpose. See Ashutosh Bhagwat, Purpose Scrutiny in Constitutional Analysis, 85 CAL. L. REV. 297, 309 (1997). As a result, the Court invalidated many economic laws adopted by Congress or the states. Id.
18. See, e.g., Ry. Express Agency v. New York, 336 U.S. 106, 110 (1949) (applying rational basis to an economic classification).
19. See Gunther, supra note 1, at 8 (stating that rational basis review is "virtually none in fact").
20. See Ry. Express Agency, 336 U.S. at 110.
21. 316 U.S. 535, 541 (1942).
22. Id. at 536-37.
23. Id. at 541.
24. Id.
25. See, e.g., Hunter v. Underwood, 471 U.S. 222, 233 (1985) (invalidating an Alabama constitutional provision disenfranchising individuals convicted of misdemeanors of "moral turpitude" because of a racially invidious motive).
26. See Heather Davis, Dedication to Justice Hans A. Linde, 64 ALB. L. REV. 1139, 1139 n.1 (2001).
27. Hans A. Linde, Who Must Know What, When, and How: The Systemic Incoherence of "Interest" Scrutiny, in PUBLIC VALUES IN CONSTITUTIONAL LAW 219 (Stephen E. Gottlieb ed., 1993).
28. Id. at 221.
29. See Korematsu v. United States, 323 U.S. 214, 216 (1944) (arguing that constitutional rights are not absolutes and that "[p]ressing public necessity" may warrant interference).
30. See Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 718 (1981) ("The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest.").
31. See Eugene Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. PA. L. REV. 2417, 2420 (1996) ("A law's underinclusiveness - its failure to reach all speech that implicates the interest - may be evidence that an interest is not compelling, because it suggests that the government itself doesn't see the interest as compelling enough to justify a broader statute.").
32. See generally Stephen A. Siegel, The Origin of the Compelling State Interest Test and Strict Scrutiny (2005) (unpublished manuscript, on file with author) (arguing that strict scrutiny arose primarily in free speech cases).
33. See generally Greg Robinson & Toni Robinson, Korematsu and Beyond: Japanese Americans and the Origins of Strict Scrutiny, 68 LAW & CONTEMP. PROBS. 29 (2005) (tracing the equal protection roots of strict scrutiny).
34. 319 U.S. 105, 116-17 (1943).
35. 323 U.S. 214, 216 (1944).
36. See Michael Klarman, An Interpretive History of Modern Equal Protection, 90 MICH. L. REV. 213, 255 (1991) (noting that it took years for the entire Court to adopt a presumptive rule against racial classifications).
37. 357 U.S. 449, 463-64 (1958).
38. 374 U.S. 398, 406-07 (1963).
39. 395 U.S. 621, 626-27 (1969).
40. 394 U.S. 618, 634 (1969).
41. United States v. Carolene Prods., 304 U.S. 144, 153 n.4 (1938).
42. Id.
43. See Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).
44. See JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 146 (1980).
45. Cass R. Sunstein, The Supreme Court, 1995 Term - Foreword: Leaving Things Undecided, 110 HARV. L. REV. 6, 78 (1996).
46. Elizabeth Anderson recently described strict scrutiny under the equal protection guarantees as "the Court's way of operationalizing 'skepticism' about the state's purposes. It offers a way of telling whether the state's purported legitimate purpose in using a racial classification is a pretext for an invidious purpose." Elizabeth Anderson, Integration, Affirmative Action, and Strict Scrutiny, 77 N.Y.U. L. REV. 1195, 1230 (2002).
47. 543 U.S. 499, 505 (2005).
48. Id.
49. Id. at 506 (quoting Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989)).
50. See, e.g., Burson v. Freeman, 504 U.S. 191, 211-14 (1992) (Kennedy, J., concurring) (arguing to uphold a geographical electioneering ban under strict scrutiny because the speech restriction was not the result of illegitimate legislative motivation).
51. See, e.g., Skinner v. Oklahoma, 316 U.S. 535, 540-42 (1942) (suggesting that improper legislative motives were likely behind a law requiring sterilization for people convicted of crimes of moral turpitude).
52. Ashutosh Bhagwat, Hard Cases and the (D)Evolution of Constitutional Doctrine, 30 CONN. L. REV. 961, 970 (1998).
53. See Siegel, supra note 32, at 82-84 (discussing the weighted cost-benefit theory of strict scrutiny).
54. Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 741 (1996) (describing this tradition after a long list of citations to landmark speech cases).
55. See Volokh, supra note 31, at 2420.
56. See Edmond Cahn, Justice Black and First Amendment "Absolutes": A Public Interview, 37 N.Y.U. L. REV. 549, 553, 559 (1962) (quoting Justice Black).
57. For other notable articulations of his absolutism, see Bridges v. California, 314 U.S. 252, 263-71 (1941) (opinion by Black, J.); Hugo L. Black, The Bill of Rights, 35 N.Y.U. L. REV. 865 (1960).
58. Cahn, supra note 55, at 553, 559.
59. See Dennis v. United States, 341 U.S. 494, 524-25 (1951) (Frankfurter, J., concurring). For fuller accounts of the Black/Frankfurter debate, see ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 84-89 (1962).
60. See generally MARK SILVERSTEIN, CONSTITUTIONAL FAITHS: FELIX FRANKFURTER, HUGO BLACK, AND THE PROCESS OF JUDICIAL DECISIONMAKING (1984).
61. Some of the classic works on balancing versus categorical rules include T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943 (1987);
62. John H. Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 HARV. L. REV. 1482 (1975);
63. Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 YALE. L.J. 877, 912-16 (1963).
64. Social choice offers another justification for strict scrutiny, according to which the courts police against legislation that would tend to reduce social welfare. My colleague Lynn Stout explains that "statutes burdening rights courts describe as 'fundamental' tend to reduce average welfare because legislative voting fails to account for the intense preference of those whose rights are invaded, while statutes employing classifications deemed 'suspect' under the Equal Protection Clause frequently serve redistributive rent-seeking. An independent judiciary that strictly scrutinizes these statutes can protect against the welfare losses that flow from legislative failure." Lynn A. Stout, Strict Scrutiny and Social Choice: An Economic Inquiry Into Fundamental Rights and Suspect Classifications, 80 GEO. L.J. 1787, 1789-90 (1992). The social choice approach "implies that no right can be absolute. When the public interest is great enough, a utilitarian calculus permits the state to intervene in even the most private decisions." Id. at 1810.
65. See Johnson v. California, 543 U.S. 499, 515 (2005) (noting that properly motivated laws are capable of surviving strict scrutiny).
66. See Volokh, supra note 31, at 2427 (noting that limitations on free speech, for example, may be acceptable when a government has extremely compelling interests in imposing such restrictions).
67. 388 U.S. 1, 11-12 (1967) (invalidating state ban on miscegenation).
68. 374 U.S. 398, 406-07 (1963) (invalidating a state law burdening the free exercise of religion).
69. 395 U.S. 621, 622 (1969) (invalidating a state law restricting the right to vote in school district elections).
70. 394 U.S. 618, 634 (1969) (invalidating a state law restricting the right to travel).
71. 323 U.S. 214 (1944).
72. See Klarman, supra note 36, at 232 n.83 (explaining Korematsu as a reflection of deference to the military).
73. Gunther, supra note 1, at 5.
74. Id. at 8.
75. Id. (footnote omitted).
76. Id. at 12.
77. Id. at 21.
78. Id.
79. Kathleen M. Sullivan, Gerald Gunther: The Man and the Scholar, 55 STAN. L. REV. 643, 645 (2002).
80. Bernal v. Fainter, 467 U.S. 216, 220 n.6 (1984); see also Fullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring) (defining "conventional 'strict scrutiny'" as "scrutiny that is strict in theory, but fatal in fact").
81. Paul Kahn, The Court, The Community, and the Judicial Balance: The Jurisprudence of Justice Powell, 97 YALE L.J. 1, 6 (1987).
82. 2 CHESTER JAMES ANTIEAU & WILLIAM J. RICH, MODERN CONSTITUTIONAL LAW § 25.02, at 8 (2d ed. 1997).
83. Jed Rubenfeld, The Anti-Antidiscrimination Agenda, 111 YALE L.J. 1141, 1160 (2002); see also Fallon, supra note 4, at 76 ("[T]he classification of legislation as either 'suspect' or 'nonsuspect' is nearly always outcome-dispositive.").
84. CAROL M. SWAIN, THE NEW WHITE NATIONALISM IN AMERICA 269 (2002).
85. Christina E. Wells, Beyond Campaign Finance: The First Amendment Implications of Nixon v. Shrink Missouri Government PAC, 66 Mo. L. REV. 141, 160 (2001).
86. EVAN GERTSMANN, SAME-SEX MARRIAGE AND THE CONSTITUTION 14 (2004);
87. see also JACK N. RAKOVE, THE UNFINISHED ELECTION OF 2000, at 172 (2003) (challenged law invalidated "virtually every time").
88. K.G. Jan Pillai, Phantom of the Strict Scrutiny, 31 NEW ENG. L. REV. 397, 404 (1997).
89. JERRY L. MASHAW, GREED, CHAOS, AND GOVERNANCE: USING PUBLIC CHOICE TO IMPROVE PUBLIC LAW 55 (1997).
90. Rubin, supra note 2, at 4.
91. Wells, supra note 80, at 160.
92. See Ashutosh Bhagwat, What If I Want My Kids to Watch Pornography?: Protecting Children From Indecent Speech, 11 WM & MARY BILL RTS. J. 671, 673 (2003);
93. Daniel J. Solove, The Virtues of Knowing Less: Justifying Privacy Protections Against Disclosure, 53 DUKE L.J. 967, 983 (2003);
94. James Weinstein, Database Protection and the First Amendment, 28 U. DAYTON L. REV. 305, 321 (2002).
95. See Kathleen Sullivan, Post-Liberal Judging: The Roles of Categorization and Balancing, 63 U. COLO. L. REV. 293, 296 (1992);
96. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1452 (2d ed. 1988).
97. TRIBE, supra note 87, at 1452.
98. 543 U.S. 499, 515 (2005) (quotations omitted).
99. See, e.g., Ashutosh Bhagwat, Purpose Scrutiny in Constitutional Law, 85 CAL. L. REV. 297, 323-24 (1997);
100. Robert E. Levy, In Lochner's Shadow: Toward a Coherent Jurisprudence of Economic Rights, 73 N.C. L. REV. 329, 418 n.385 (1995).
101. Sunstein, supra note 45, at 77.
102. See Bhagwat, supra note 90, at 299-304, 315.
103. Id. at 315.
104. 473 U.S. 432, 450 (1985) (invalidating, under rational basis review, the application of a zoning law to prevent the operation of a group home for the mentally disabled).
105. 517 U.S. 620, 635 (1996) (invalidating, under rational basis review, a Colorado constitutional provision that barred the enactment of laws protecting those discriminated against on the basis of sexual orientation).
106. 539 U.S. 558, 578 (2003) (invalidating a Texas law that criminalized same-sex sodomy because it served no "legitimate" governmental interest).
107. See generally Gayle Lynn Pettinga, Note, Rational Basis with Bite: Intermediate Scrutiny By Any Other Name, 62 IND. L.J. 779 (1987); see also Gunther, supra note 1, at 18-19 (arguing that several "minimal scrutiny" cases applied a standard with "bite"). Cf. Lawrence, 539 U.S. at 580 (2003) (O'Connor, J., concurring) (arguing that the Court has applied a "more searching" form of rational basis review when adjudicating laws burdening personal relationships).
108. Lending empirical support to the thesis that the traditional tiers are softening is Robert Farrell's study of Supreme Court rational basis decisions between 1973 and May 1996, which found that 10% of the applications of that test resulted in the law being invalidated. See Robert C. Farrell, Successful Rational Basis Claims in the Supreme Court From the 1971 Term Through Romer v. Evans, 32 IND. L. REV. 357, 417-18 App. (1999).
109. See James E. Ryan, Note, Smith and the Religious Freedom Restoration Act: An Iconoclastic Assessment, 78 VA. L. REV. 1407 (1992).
110. Id. at 1417.
111. See Daniel O. Conkle, The Religious Freedom Restoration Act: The Constitutional Significance of an Unconstitutional Statute, 56 MONT. L. REV. 39, 55 (1995);
112. Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. CHI. L. REV. 1109, 1110, 1127 (1990);
113. Kathleen M. Sullivan, Categorization, Balancing, and Government Interests, in PUBLIC VALUES IN CONSTITUTIONAL LAW 241, 246 (Stephen E. Gottlieb ed., 1993).
114. Westlaw query for "da(1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003) & "strict scrutiny" "strictest scrutiny" "exacting scrutiny" ((compelling /2 interest) /s (narrow! "least restrictive"))" in the All Federal Cases database, conducted on September 24, 2004.
115. See, e.g., Cooper v. McBeath, 11 F.3d 547, 553 (5th Cir. 1994) (applying the "strictest scrutiny" but requiring a "legitimate" interest in the dormant commerce clause context). Although I did not collect data on dormant commerce clause decisions, many were encountered while conducting the research for this Article and few (if any) survivors were found. Not all scrutiny has to be "strict" to be vigorous.
116. See, e.g., Loving v. Virginia, 388 U.S. 1, 11-12 (1967) (applying what is now widely recognized as strict scrutiny even though the Court only required a "permissible" - rather than "compelling" - governmental interest); Oyama v. California, 332 U.S. 633, 640, 646 (1948) (invalidating racially discriminatory state law under a partial strict scrutiny analysis that looked to the compelling importance of the governmental ends but without any formal analysis of means fit).
117. Some applications of strict scrutiny necessarily evaded the data set by the decision to focus only on published opinions. Courts that applied strict scrutiny without authoring an opinion and/or triggering an appeal that would result in an opinion were not captured by my research. This may skew the data and undercount strict scrutiny survivors. Assuming that a court is more likely to publish an opinion when it overturns a law than when it upholds one, we would expect the universe of unpublished strict scrutiny applications to be disproportionately survivors. In turn, the universe of published applications will be disproportionately fatalities.
118. Each judicial vote on a discrete legal issue requiring strict scrutiny analysis was treated individually. In some cases, there were multiple, distinct legal issues voted upon in a decision and each vote was counted as a separate observation.
119. One interesting question, although beyond the scope of this study, is why we do not find something closer to a 50% rate, as might be expected in light of the famous Priest-Klein "selection effect" hypothesis. See generally George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. LEGAL STUD. 1, 5 (1984) (arguing that because only "close" cases will ordinarily be pursued through final adjudication, with others controversies settling prior to trial or never being brought, plaintiffs should win approximately 50% of litigated cases regardless of the substantive standard or legal rule).
120. Although there has been considerable research on the Priest-Klein hypothesis, most of it looks at private rather than constitutional litigation. For exemplary studies, see Theodore Eisenberg, Testing the Selection Effect: A New Theoretical Framework with Empirical Tests, 19 J. LEGAL STUD. 337 (1990);
121. Keith N. Hylton, Asymmetric Information and the Selection of Disputes for Litigation, 22 J. LEGAL STUD. 187 (1993);
122. Randall S. Thomas & Kenneth J. Martin, Litigating Challenges to Executive Pay: An Exercise in Futility?, 79 WASH. U. L.Q. 569 (2001);
123. Robert E. Thomas, The Trial Selection Hypothesis Without the 50 Percent Rule: Some Experimental Evidence, 24 J. LEGAL STUD. 209 (1995). The selection effect in strict scrutiny cases is examined more thoroughly in Craig Countryman & Adam Winkler, Fundamental Rights and the Selection Effect (2006) (unpublished manuscript, on file with the author).
124. 539 U.S. 306, 327 (2002).
125. Id. (internal quotations omitted).
126. See generally Frederick Schauer, Principles, Institutions, and the First Amendment, 112 HARV. L. REV. 84 (1998) [hereinafter Institutions];
127. Frederick Schauer & Richard H. Pildes, Electoral Exceptionalism and the First Amendment, 11 TEX. L. REV. 1803 (1999);
128. Frederick Schauer, Towards an Institutional First Amendment, 89 MINN. L. REV. 1256 (2005) [hereinafter Institutional First Amendment].
129. Schauer, Institutional First Amendment, supra note 109, at 1260.
130. Schauer, Institutions, supra note 109, at 113-14.
131. Schauer, Institutional First Amendment, supra note 109, at 1260.
132. Penal Institutions includes both federal and state prisons and related institutions.
133. Judiciary includes court orders, injunctions, and consent decrees put in place by courts.
134. Federal Agency includes all federal executive branch agencies, except prisons.
135. State Legislature/Constitution includes state legislative enactments and constitutional provisions.
136. State Administrative Agency includes all state executive agencies, except prisons and educational institutions.
137. Educational Institutions includes public schools, colleges, universities, and libraries. Library cases were too few in number (3 total, all fatalities) to warrant treatment as a unique variable.
138. Local Government includes municipal and county governmental actors, excluding educational institutions.
139. Other included private entities that were deemed to be state actors (such as unions), and state bars.
140. 482 U.S. 78, 89 (1987).
141. Id.
142. Schauer, Institutional First Amendment, supra note 109, at 1274-75.
143. 190 F.3d 1061 (9th Cir. 1999).
144. Id. at 1066.
145. Id. (quoting Univ. of Pa. v. EEOC, 493 U.S. 182, 199 (1990)).
146. 539 U.S. 306 (2003).
147. Id. at 330 (quoting Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312-13 (1978)).
148. Id. at 328; see also Lackland H. Bloom, Jr., Grutter and Gratz: A Critical Analysis, 41 HOUS. L. REV. 459, 470 (2004) ("Four paragraphs into the analytical section of the opinion, the continuous drumbeat of deference, deference, deference rings out loud and clear.").
149. Mark D. Rosen, The Surprisingly Strong Case for Tailoring Constitutional Principles, 153 U. PA. L. REV. 1513, 1516 (2005).
150. Id.
151. Id. at 1520.
152. See id. at 1526, 1536-37. Rosen also describes tailoring that occurs through the development of doctrine after the choice of standard has been made, what he terms a "Rulified Standard." Id. at 1526.
153. Federal included acts of Congress, federal administrative agency regulations (including federal penal institutions), and orders of federal courts.
154. State included all state legislation, state constitutions, state court orders, and state agency action. Note that, unlike in Table 2, State here includes state penal institutions.
155. Local included all laws or government actions taken by governments at the county level and smaller. Note that, unlike in Table 2, Local here includes educational institutions.
156. "Tailoring" might be understood in two different ways, only one of which is suggested by the strict scrutiny cases. One form of tailoring would be for the courts to uphold law x enacted by the federal government and reject the same law if enacted by a state. A second, more subtle form of tailoring is the implementation of an extra degree of deference to the federal government vis-à-vis the states.
157. THE FEDERALIST NO. 10, at 83 (James Madison) (Clinton Rossiter ed., 1961).
158. Id. For an insightful argument that courts to apply relative deference to federal laws as compared to state laws on the basis of Madison's theory of faction, see Norman Williams, Note, Rising Above Factionalism: A Madisonian Theory of Judicial Review, 69 N.Y.U. L. REV. 963 (1994).
159. 515 U.S. 200, 237 (1995).
160. N = 21.
161. N = 38.
162. N = 29.
163. N = 43.
164. N = 35.
165. N = 42.
166. The number of district and circuit court applications reported here excludes non-final rulings, where the same legal question was analyzed under strict scrutiny by a higher court in a subsequent published opinion.
167. N = 117 (40 survivors, 77 fatalities). Note that not all district court decisions that were subsequently adjudicated by the court of appeals were reported. The data here only include reported district court decisions. Moreover, the results of this comparison are generally consistent with the Priest-Klein selection effects hypothesis discussed supra note 106.
168. Cass R. Sunstein, David Schkade, & Lisa Michelle Ellman, Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation, 90 VA. L. REV. 301, 319-22 (2004).
169. For a classic work on how judicial attitudes impact voting, see JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL (1993).
170. Significant challenges have been made to the attitudinal model in the political science literature. See, e.g., LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE (1997) (arguing for a strategic interaction model of judging that focuses on coalition-building and institutional dynamics affecting Supreme Court decisionmaking).
171. See supra notes 109-139, and accompanying text.
172. The omitted coefficients, none of which were statistically significant, are state agencies (-0.921), local governments (-0.527), educational institutions (-0.527), and other governmental actors (-0.838). Of these, only local government was even close to significant (p = .137). The local government variable in Model IV is not equivalent to the local government variable used in the earlier models - due to the vertical breakdown of governmental institutions, many of the local governmental laws fell into other categories (notably educational institutions) - and thus the results for this variable have been omitted from the table to avoid confusion.
173. Grutter v. Bollinger, 539 U.S. 306, 327 (2003) (internal quotations omitted).
174. The one non-race case was Wallace v. Calogero, 286 F. Supp. 2d 748, 763-64 (E.D. La. 2003) (invalidating a Louisiana law barring non-immigrant aliens from practicing law).
175. 478 U.S. 421, 480 (1986) (plurality opinion).
176. Id. at 426.
177. Id. at 440.
178. Id. at 480.
179. Id. at 485 (Powell, J., concurring).
180. 480 U.S. 149, 185-86 (1987) (plurality opinion).
181. Id. at 166-67.
182. 488 U.S. 469, 511 (1989) (plurality opinion).
183. 515 U.S. 200, 204-05 (1995).
184. The opinion is partially a majority opinion and partially a plurality opinion. See Croson, 488 U.S. at 476.
185. Id. at 492, 493.
186. See id. at 493 ("Classifications based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility."); see also Kenneth L. Karst, The Revival of Forward-Looking Affirmative Action, 104 COLUM. L. REV. 60, 64 (2004) ("In the Court's opinion, Justice O'Connor did say that affirmative action had to be limited to compensation for specifically identified past discrimination.").
187. 515 U.S. at 227.
188. Id. at 237.
189. Id.
190. K.G. Jan Pillai, Phantom of the Strict Scrutiny, 31 NEW ENG. L. REV. 397, 400 (1997).
191. Erica J. Rinas, A Constitutional Analysis of Race-Based Limitations on Open Enrollment in Public Schools, 82 IOWA L. REV. 1501, 1515 (1997).
192. William L. Taylor & Susan M. Liss, Affirmative Action in the 1990s: Staying the Course, 523 ANNALS AM. ACAD. POL. & SOC. SCI. 30, 35 (1992).
193. 951 F.2d 446 (1st Cir. 1991).
194. Id. at 455; see also Cotter v. City of Boston, 323 F.3d 160, 164 (1st Cir. 2003) (upholding under strict scrutiny the promotion to sergeant of black applicants with lower exam scores than white applicants who were not promoted); Boston Police Superior Officers Fed'n v. City of Boston, 147 F.3d 13, 14 (1st Cir. 1998) (upholding racial preferences for promotions to lieutenant in the Boston police department, which had engaged in past discrimination, under strict scrutiny).
195. Stuart, 951 F.2d at 452.
196. Id. at 454-55.
197. See Petit v. City of Chicago, 352 F.3d 1111, 1114 (7th Cir. 2003) (upholding race-based affirmative action plan to promote minority police officers); Reynolds v. City of Chicago, 296 F.3d 524, 521-30 (7th Cir. 2002) (upholding under strict scrutiny the Chicago Police Department's affirmative action plan that permitted the promotion of Hispanics over whites with higher test scores); Majeske v. City of Chicago, 218 F.3d 816, 818 (7th Cir. 2000) (upholding an affirmative action plan for promotion of detectives in the Police Department under which applicants were ranked within their respective racial categories and which set target goals on the basis of estimated numbers of past minority promotions lost to discrimination).
198. See McNamara v. City of Chicago, 138 F.3d 1219, 1224 (7th Cir. 1998) (upholding the promotion of minority firemen to captain because there was evidence of past discrimination and the minority proportion of captains remained lower than the percentage of minorities in the city's population).
199. See Officers for Justice v. Civil Serv. Comm'n, 979 F.2d 721, 726-27 (9th Cir. 1992) (applying strict scrutiny and upholding "banding" of test scores, according to which the San Francisco Police Department treats scores within a statistically determined range as equivalent in order to promote more minorities).
200. See Peightal v. Metro. Dade County, 26 F.3d 1545, 1548 (11th Cir. 1994) (upholding a remedial affirmative action plan for Hispanics in the county fire department).
201. See Sims v. Montgomery County Comm'n, 887 F. Supp. 1479, 1487-88 (M.D. Ala. 1995) (upholding under strict scrutiny a settlement agreement reached in a discrimination suit that required county sheriff department to promote an equal number of black and white sergeants and lieutenants for one year).
202. See Paganucci v. City of New York, 785 F. Supp. 467, 476-78 (S.D.N.Y. 1992) (upholding consent decree requiring remedial racial preferences for municipal police department promotions).
203. See Vogel v. Cincinnati, 959 F.2d 594, 596 (6th Cir. 1992) (upholding the race-based affirmative action policy of the Cincinnati Police Department).
204. See United States v. Sec'y of HUD, 239 F.3d 211, 218-221 (2d Cir. 2001) (upholding a court order requiring Yonkers to integrate its housing with race-based policies to remedy past, intentional racial segregation).
205. See, e.g., Sherbrooke Turf, Inc. v. Minn. Dept. of Transp., 345 F.3d 964, 969-73 (8th Cir. 2003) (upholding public contracting rules); Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 714-15 (6th Cir. 1997) (invalidating public contracting rules); Associated Gen. Contractors of Ohio, Inc. v. Drabik, 50 F. Supp. 2d 741, 771 (S.D. Ohio 1999) (invalidating public contracting rules).
206. See supra notes 174-183, and accompanying text.
207. See, e.g., Podberesky v. Kirwan, 38 F.3d 147, 151 (4th Cir. 1994) (invalidating racial preferences in educational institution); Hampton v. Jefferson County Bd. of Educ., 102 F. Supp. 2d 358, 382 (W.D. Ky. 2000) (invalidating racial preferences in educational institution); Shuford v. Ala. State Bd. of Educ., 846 F. Supp. 1511, 1512 (M.D. Ala. 1994) (upholding racial preferences in educational institution).
208. See, e.g., Goosby v. Town Bd., 180 F.3d 476, 481 (2d Cir. 1999) (upholding race-based districting).
209. See, e.g., MD/DC/DE Broadcasters Ass'n v. FCC, 236 F.3d 13, 15-16 (D.C. Cir. 2001) (invalidating broadcasting licensing racial preferences).
210. See, e.g., Back v. Bayh, 933 F. Supp. 738, 756-57 (N.D. Ind. 1996) (invalidating racial preferences used by state judicial nominating commission).
211. See, e.g., Wallace v. Calogero, 286 F. Supp. 2d 748, 763-64 (E.D. La. 2003) (invalidating a Louisiana law barring non-immigrant aliens from practicing law).
212. Adarand Constructors v. Pena, 515 U.S. 200, 224 (1995).
213. Law Enforcement includes fire department and police department hiring and promotion plans, along with a few racial classifications used by penal institutions.
214. Public Contracting includes minority business set-asides, public employment preferences (excluding law enforcement personnel and preference programs for Native Americans), and race-conscious public housing policies.
215. The standard threshold for statistical significance is p < .005. However, in light of the low F, even a p value of .065 is arguably significant.
216. See supra notes 172-183, and accompanying text.
217. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 498-99 (1989).
218. Wittmer v. Peters, 87 F.3d 916, 919 (7th Cir. 1996) (emphasis in original).
219. Shaw v. Reno, 509 U.S. 630, 645 (1993); see Miller v. Johnson, 515 U.S. 900, 905 (1995); see also Pamela S. Karlan, Easing the Spring: Strict Scrutiny and Affirmative Action After the Redistricting Cases, 43 WM. & MARY L. REV. 1569, 1584 (2002).
220. See Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977); Karlan, supra note 198, at 1584.
221. See, e.g., Easley v. Cromartie, 532 U.S. 234, 257-58 (2001) (holding that a race-influenced districting plan was not predominantly motivated by race and thus strict scrutiny was inapplicable).
222. Rubin, supra note 2, at 89. Rubin posits another interpretation of Shaw, but even this second possibility, in his view, would lead to "invalidation of all race-conscious districts." Id. (emphasis in original).
223. U.S. CONST. amend. XIV, § 5.
224. See, e.g., Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990).
225. Adarand Constructors v. Pena, 515 U.S. 200, 222 (1995).
226. Id. at 226.
227. Id. at 227.
228. Federal Actors includes Congress, federal administrative agencies, and federal judicial orders.
229. State & Local includes all other enacting institutions.
230. The pattern is similar to that found by Sunstein, Schkade & Ellman, supra note 149, at 319, in their study of federal appellate court decisions on affirmative action between 1978 and 2002.
231. Included in this category are 8 observed applications of strict scrutiny to speech restrictions arising under the fundamental rights strand of the Equal Protection Clause. These cases apply the doctrine of the First Amendment, even though they are formally brought under the Fourteenth Amendment (and not just for reasons of incorporation).
232. See, e.g., Texas v. Johnson, 491 U.S. 397, 406 (1989) (explaining that strict scrutiny applies to content-based speech restrictions).
233. This area of constitutional law showed no statistically significant difference in survival votes between Democrat and Republican appointed judges. Democratic appointees are slightly less likely than Republican appointees to uphold a speech restriction (22% to 27%, with N = 164 and 318 respectively), but this difference was not statistically significant (p = .224). This finding even held in the campaign finance area. Democrat appointees voted to uphold 29% of the time in campaign finance controversies (N = 48), compared to 30% by Republican appointees (N = 128), with no statistical significance (p = .947).
234. 424 U.S. 1 (1976).
235. Id. at 25 (citation omitted).
236. Id. at 15 (citation omitted).
237. Id. at 17.
238. Id. at 18.
239. Id. at 29.
240. Id. at 45-48.
241. Id. at 24-28.
242. In Nixon v. Shrink Mo. Gov't PAC, the Court officially revised the test for contribution limits and held that something less than strict scrutiny applied to these specific types of campaign finance regulations: a form of intermediate scrutiny that required "close" tailoring to further a sufficiently "important" end. 528 U.S. 377, 387-88 (2000). Measured by the language of the lower court opinions in contribution ban cases, it appears that judges thought they were applying strict scrutiny in the pre-Nixon years - or, at least, that is what they said in justifying their decisions. According to Christina Wells, prior to Nixon the courts "consistently . . . interpreted Buckley as requiring strict scrutiny review for contribution limitations." Wells, supra note 80, at 150 n.67. For purposes of my study, I have labeled decisions in contribution limits cases occurring between 1990 and 2000 (the year Nixon was handed down) as strict scrutiny cases, unless the court referred to the applicable standard as something other than strict scrutiny.
243. 459 U.S. 197, 207 (1982) [hereinafter NRWC] (citation omitted).
244. 494 U.S. 652 (1990).
245. Id. at 659 (citation omitted).
246. See id. at 657 ("[W]e must ascertain whether it burdens the exercise of political speech and, if it does, whether it is narrowly tailored to serve a compelling state interest.").
247. 540 U.S. 93, 205 (2003). McConnell did not explicitly refer to "strict scrutiny" but relied directly on Austin, which did unambiguously use strict scrutiny, and required that the electioneering finance restrictions be justified by a "compelling governmental interest." See id. As a result, I have coded McConnell's adjudication of the electioneering finance restrictions as an application of strict scrutiny.
248. Of the 62 campaign speech fatalities, 57 contain a sufficient analysis of strict scrutiny to determine what prong of the test was found to be unsatisfied. Of those 57, 47 (or 82%) ruled that the ends were compelling and the constitutionality of the law turned on the fit.
249. N= 17.
250. N = 4.
251. N = 7.
252. N = 16.
253. N = 4.
254. See, e.g., Marlene Arnold Nicholson, Political Campaign Expenditure Limitations and the Unconstitutional Conditions Doctrine, 10 HASTINGS CONST. L.Q. 601, 607 (1983) (recognizing the lack of clarity in Buckley and observing that "the Court seemed to scrutinize some of the limitations more closely than others, giving credence to the interpretation that the level of scrutiny was subject to a sliding scale").
255. Buckley v. Valeo, 424 U.S. 1, 30 (1976) (citation omitted).
256. See Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 387-88 (2000) (requiring that contribution limits have "close" tailoring to further a sufficiently "important" end).
257. See Wells, supra note 80, at 150 n.67.
258. 464 U.S. 501, 510 (1984).
259. Kamasinski v. Judicial Review Council, 44 F.3d 106, 109 (2d Cir. 1994). I thank Eugene Volokh for reminding me that such cases do not technically limit speech. If all of the right-of-access decisions are removed from the free speech category, the survival rate of speech laws declines to 18 percent - still far from inevitably fatal.
260. N = 4.
261. N = 4.
262. N = 3.
263. N = 16.
264. See, e.g., Good News/Good Sports Club v. Sch. Dist., 28 F.3d 1501, 1502 (8th Cir. 1994) (invalidating denial of access to public school's facilities); Khademi v. S. Orange County Cmty. Coll. Dist., 194 F. Supp. 2d 1011, 1036 (CD. Cal. 2002) (invalidating law requiring advance approval for postings at a community college); Pfeifer v. City of W. Allis, 91 F. Supp. 2d 1253, 1267-68 (E.D. Wis. 2000) (invalidating denial of access to public library's meeting room).
265. See, e.g., Zapach v. Dismuke, 134 F. Supp. 2d 682, 698 (E.D. Pa. 2001) (invalidating denial of access to public comment period of a government meeting); Pesek v. City of Brunswick, 794 F. Supp. 768, 801 (N.D. Ohio 1992) (invalidating city council's prohibition of a firefighter speaking at council meetings).
266. See, e.g., Hopper v. City of Pasco, 241 F.3d 1067, 1069-70 (9th Cir. 2001) (invalidating municipality's refusal to display controversial art in City Hall); Doe v. Small, 964 F.2d 611, 612 (7th Cir. 1992) (invalidating ban on religious displays in public parks).
267. See, e.g., Christ's Bride Ministries, Inc. v. Southeastern Pa. Transp. Auth., 148 F.3d 242, 244 (3d Cir. 1998) (invalidating refusal to allow anti-abortion advertisements in public buses); Knights of Ku Klux Klan v. Ark. State Highway and Transp. Dept., 807 F. Supp. 1427, 1438-39 (W.D. Ark. 1992) (invalidating exclusion of the Ku Klux Klan from adopt-a-highway program).
268. See Mood For A Day, Inc. v. Salt Lake County, 953 F. Supp. 1252, 1271-72 (D. Utah 1995) (upholding a county's refusal to allow a pro-marijuana group alleged to be advocating violation of the criminal laws to operate a booth at a family-themed county fair).
269. N = 10.
270. See, e.g., Church on the Rock v. City of Albuquerque, 84 F.3d 1273, 1281 (10th Cir. 1996) (rejecting end of compliance with the Establishment Clause in the context of a city policy banning religious instruction and worship in city-owned senior centers); Good News/Good Sports Club v. Sch. Dist., 28 F.3d 1501, 1502 (8th Cir. 1994) (rejecting compliance end asserted to justify school district's denial of religious organization's access to district property).
271. See, e.g., Whitton v. City of Gladstone, 54 F.3d 1400, 1403 (8th Cir. 1995) (regulating placement of political signs for aesthetic and traffic safety reasons); King Enters., Inc. v. Thomas Twp., 215 F. Supp. 2d 891, 896 (E.D. Mich. 2002) (regulating exterior signs for the purposes of "public safety, aesthetics and economic development").
272. The ends prong was not satisfied in 14 of the 18 sign ordinance applications.
273. See, e.g., Whitton, 54 F.3d at 1410-11 (invalidating sign law targeting political speech as underinclusive); Sugarman v. Village of Chester, 192 F. Supp. 2d 282, 302-03 (S.D. N.Y. 2002) (invalidating sign law targeting political speech as underinclusive).
274. N = 4.
275. N = 3.
276. For examples of courts upholding disclosure laws, see Special Programs, Inc. v. Courter, 923 F. Supp. 851, 860-61 (E.D. Va. 1996) (upholding disclosure requirement); Lucas v. Curran, 856 F. Supp. 260, 273 (D. Md. 1994) (upholding disclosure requirement); Am. Ass'n of State Troopers, Inc. v. Preate, 825 F. Supp. 1228, 1238 (M.D. Pa. 1993) (upholding disclosure requirement).
277. See, e.g., Auburn Police Union v. Carpenter, 8 F.3d 886, 889 (1st Cir. 1993) (upholding ban on charity solicitations by law enforcement personnel); Tex. State Troopers Ass'n, Inc. v. Morales, 10 F. Supp. 2d 628 (N.D. Tx. 1998) (upholding ban on charity solicitations by law enforcement personnel).
278. See, e.g., Ohio Citizen Action v. City of Mentor-On-The-Lake, 272 F. Supp. 2d 671, 674-75 (N.D. Ohio 2003) (invalidating curfew); Tex. State Troopers Ass'n, Inc., 10 F. Supp. at 637 (invalidating curfew).
279. See Miller v. California, 413 U.S. 15, 23 (1973) ("This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment.").
280. Sable Commc'ns v. FCC, 492 U.S. 115, 126 (1989); New York v. Ferber, 458 U.S. 747, 756-57 (1982); Ginsberg v. New York, 390 U.S. 629, 639-40 (1968).
281. N = 5.
282. N = 3.
283. N = 4.
284. See, e.g., ACLU v. Johnson, 194 F.3d 1149, 1160 (10th Cir. 1999) (state law criminalizing computer dissemination of material harmful to minors held to be overinclusive); Fabulous Assocs., Inc. v. Pa. Pub. Util. Comm'n, 896 F.2d 780, 788 (3d Cir. 1990) (alternatives available to state restrictions on access to sexually explicit phone service).
285. See, e.g., Eakins v. Nevada, 219 F. Supp. 2d 1113, 1121 (D. Nev. 2002) (holding statute that criminalized the filing of false allegations of misconduct against a police officer violated the First Amendment); Hamilton v. City of San Bernardino, 107 F. Supp. 2d 1239, 1248 (C.D. Cal. 2000) (holding state law making it a misdemeanor to knowingly file a false misconduct allegation against a police officer violates the First Amendment).
286. N = 4.
287. See, e.g., Kirkeby v. Furness, 92 F.3d 655, 658 (8th Cir. 1996) (invalidating restriction of abortion protestors to specific areas around abortion clinics); Trewhella v. City of Lake Geneva, 249 F. Supp. 2d 1057, 1076-77 (E.D. Wis. 2003) (invalidating selective permitting requirement for parades and protests); Mahoney v. Babbitt, 105 F.3d 1452, 1459-60 (D.C. Cir. 1997) (invalidating the revocation of a permit to protest at the President's inauguration).
288. N = 9.
289. Dickerson v. Stuart, 877 F. Supp. 1556, 1561 (M.D. Fla. 1995) (upholding the midwife speech restriction).
290. Trimble v. City of New Iberia, 73 F. Supp. 2d 659, 668-69 (W.D. La. 1999) (invalidating fortunetelling ban); Rushman v. City of Milwaukee, 959 F. Supp. 1040, 1041-42 (E.D. Wis. 1997) (invalidating astrology and fortunetelling ban).
291. IOTA XI Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386, 393 (4th Cir. 1993) (invalidating the contest ban).
292. Am. Knights of Ku Klux Klan v. City of Goshen, 50 F. Supp. 2d 835, 836 (N.D. Ind. 1999) (invalidating the anti-mask law).
293. Interactive Digital Software Ass'n v. St. Louis County, 329 F.3d 954, 956 (8th Cir. 2003) (invalidating rental restrictions); Video Software Dealers Ass'n v. Webster, 968 F.2d 684, 687 (8th Cir. 1992) (same).
294. Eclipse Enters., Inc. v. Gulotta, 134 F.3d 63, 64 (2d Cir. 1997) (invalidating the trading card ban).
295. One notable counter-example is Mark D. Rosen, Institutional Context in Constitutional Law: A Critical Examination of Term Limits, Judicial Campaign Speech Codes, and Anti-Pornography Ordinances, 21 J. L. & POL. 233, 244-47 (2005). Contrary to the pattern I uncovered, Rosen argues for courts to give local governments more leeway than the states or the federal government in regulating speech. Id.
296. See Roth v. United States, 354 U.S. 476, 496-508 (1957) (Harlan, J., dissenting in part, concurring in part) (arguing for separate standard for federal impediments on obscenity); see also Ginzburg v. United States, 383 U.S. 463, 493-97 (1966) (Harlan, J., dissenting) (same); Jacobellis v. Ohio, 378 U.S. 184, 203-04 (1964) (Harlan, J., dissenting) (same). Early in his service, (then) Justice William Rehnquist, who occupied the seat on the Court vacated by Harlan, continued the call for stricter review of federal speech laws. See Buckley v. Valeo, 424 U.S. 1, 291 (1976) (Rehnquist, J., concurring in part and dissenting in part) (arguing for more stringent standards for federal impairments on free speech). Of course, studies of Justice Harlan's judicial philosophy have recognized Harlan's preference for favoring state over federal speech laws. See Norman Dorsen, The Second Mr. Justice Harlan: A Constitutional Conservative, 44 N.Y.U. L. REV. 249, 262-63 (1969) ("In his view the broad responsibility of states for public welfare under the police power grants them more leeway to regulate free expression.");
297. Daniel A. Farber & John Nowak, Justice Harlan and the First Amendment, 2 CONST. COMMENT. 425, 432 (1985) ("Harlan was willing to allow the states broad leeway in regulation of obscenity. In his view, however, the legitimate sphere of federal regulation was narrowly circumscribed.").
298. Roth, 354 U.S. at 505.
299. All 18 of the sign ordinance laws and 19 of 28 instances of public forum discrimination were adopted by local governmental actors. There was only one instance of a federal law restricting access to a public forum, and it was invalidated.
300. N = 6 and N = 20, respectively.
301. N = 8.
302. N = 4.
303. For my own effort to explain the federalism effect in free speech cases, see Adam Winkler, Free Speech Federalism (2006) (unpublished manuscript, on file with author).
304. A statistical test using the ideology proxy found no significant difference between Republican and Democratic appointees' votes to uphold/reject religious liberty infringements.
305. See, e.g., Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 360 (3d Cir. 1999) (invalidating requirement that police officers shave their beards); United States v. Hammer, 121 F. Supp. 2d 794, 801 (M.D. Pa. 2000) (invalidating mandatory autopsy policy).
306. See, e.g., United States v. Lundquist, 932 F. Supp. 1237, 1244 (D. Or. 1996) (upholding provisions of the Bald & Golden Eagle Protection Act from RFRA challenge).
307. See, e.g., Charles v. Verhagen, 220 F. Supp. 2d 937, 947, 952 (W.D. Wis. 2002) (invalidating prison ban on inmate's use of prayer oil and upholding prison's limits on the number of religious feasts inmates can attend under the RLUIPA).
308. 42 U.S.C. § 2000cc (2006).
309. See 374 U.S. 398, 406-10 (1963) (finding that there must be a compelling state interest to justify an infringement of the Free Exercise Clause).
310. Tony and Susan Alamo Found. v. Sec'y of Labor, 471 U.S. 290, 299 (1985).
311. United States v. Lee, 455 U.S. 252, 261 (1982).
312. Jimmy Swaggart Ministries v. Bd. of Equalization, 493 U.S. 378, 389-90 (1990).
313. See Ryan, supra note 98, at 1416-17.
314. Christopher L. Eisgruber & Lawrence G. Sager, The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct, 61 U. CHI. L. REV. 1245, 1247 (1994).
315. For additional recognition of the survivability of the standard used in free exercise cases, see Gary J. Simson, Endangering Religious Liberty, 84 CAL. L. REV. 441, 459-60 (1996);
316. Joshua R. Geller, The Religious Land Use and Institutionalized Persons Act of 2000: An Unconstitutional Exercise of Congress's Power Under Section Five of the Fourteenth Amendment, 6 N.Y.U. J. LEGIS. & PUB. POL'Y, 561, 564 (2003).
317. 494 U.S. 872, 882-85 (1990).
318. Sullivan, supra note 87, at 300.
319. 42 U.S.C. § 2000bb-1 (2006).
320. Id.
321. 521 U.S. 507, 532-36 (1997).
322. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993) (applying strict scrutiny under the Free Exercise Clause); Simpson v. Chesterfield County Bd. of Supervisors, 292 F. Supp. 2d 805, 810-11 (E.D. Va. 2003) (applying strict scrutiny under the Establishment Clause); Rader v. Johnston, 924 F. Supp. 1540, 1550-51 (D. Neb. 1996) (applying strict scrutiny under the Free Exercise Clause).
323. 42 U.S.C.A. § 2000cc-1(a) (2006).
324. Ryan, supra note 98, at 1416-17.
325. See, e.g., United States v. Lee, 455 U.S. 252, 261 (1982) (refusing to grant a religious exemption to social security participation).
326. Church of the Lukumi Babalu, 508 U.S. at 524-26.
327. 494 U.S. 872, 884-86 (1990).
328. See, e.g., S. Ridge Baptist Church v. Indus. Comm'n, 911 F.2d 1203, 1208-11 (6th Cir. 1990) (refusing free exercise exemption for church from worker's compensation program); United States v. Bd. of Educ., 911 F.2d 882, 893 (3d Cir. 1990) (refusing to exempt school teacher from dress code requirement).
329. See JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW 1481 (7th ed. 2004) (granting exemptions "would make compliance with the law optional for every person").
330. Ira C. Lupu, Where Rights Begin: The Problems of Burdens on the Free Exercise of Religion, 102 HARV. L. REV. 933, 947 (1989).
331. Eugene Volokh, A Common-Law Model for Religious Exemptions, 46 UCLA L. REV. 1465, 1500 (1999).
332. Id. at 1498.
333. See Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 360 (3d Cir. 1999) (invalidating requirement that police officers shave their beards).
334. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993).
335. A group of federal court decisions handed down before the time period analyzed in this Article upheld infringements of bodily integrity of women seeking abortions past the point of fetal viability. The Supreme Court paved the way for these cases in none other than the landmark abortion rights decision of Roe v. Wade, 410 U.S. 113 (1973). Roe's trimester framework, under which the right to choose abortion varied dramatically depending upon where the woman was in her pregnancy, was built around strict scrutiny. Following this framework, the lower courts applied strict scrutiny and upheld a variety of late-term abortion restrictions. See Am. Coll. of Obstetricians and Gynecologists v.
336. This excludes one case where the federal court assumed arguendo that the right to bear arms was a fundamental right protected by the Equal Protection Clause. See United States v. Miles, 238 F. Supp. 2d 297, 301 (D. Me. 2002) (upholding a gun control law under strict scrutiny). Another group of fundamental rights cases - equal protection challenges to discriminatory speech restrictions - is treated in this study as free speech cases rather than fundamental rights cases.
337. See generally Robertson v. Bartels, 150 F. Supp. 2d 691 (D. N.J. 2001) (analyzing a statute that imposed a four-year residency requirement).
338. See generally McLaughlin v. City of Canton, 947 F. Supp. 954 (S.D. Miss. 1995) (analyzing statute that prohibited individuals convicted of misdemeanors from voting).
339. See Doe v. Rowe, 156 F. Supp. 2d 35, 50-51 (D. Me. 2001) (finding a state constitutional provision unconstitutional because it denied the mentally ill the right to vote).
340. See Greidinger v. Davis, 988 F.2d 1344, 1345 (4th Cir. 1993) (analyzing a statute that required potential voters to supply their social security numbers for police inspection).
341. See, e.g., Bonsol v. Perryman, 240 F. Supp. 2d 823, 826-27 (N.D. Ill. 2003) (invalidating legislative denial of bail for indefinitely detained aliens); Vang v. Ashcroft, 149 F. Supp. 2d 1027, 1037-38 (N.D. Ill. 2001) (same); Vo v. Greene, 63 F. Supp. 2d 1278, 1284-85 (D. Colo. 1999) (same).
342. See, e.g., Johnson v. Nelson, 142 F. Supp. 2d 1215, 1229-30 (S.D. Cal. 2001) (upholding civil commitment of sexual predator).
343. See, e.g., United States v. Deters, 143 F.3d 577, 582 (10th Cir. 1998) (upholding commitment for psychological evaluation).
344. N=15.
345. N= 4. In Troxel v. Granville, 530 U.S. 57, 68 (2000), the Supreme Court invalidated a Washington state law that allowed any person, at any time, to petition for visitation rights to a child. A majority of the Court concurred with the plurality opinion's declaration that parents have a due process right "to make decisions concerning the care, custody, and control of their children." Id. at 66 (plurality opinion), 80 (Thomas, J., concurring), 77 (Souter, J., concurring). Parental rights cases typically arise in state courts and Troxel has led to an avalanche of state court litigation over the constitutionality of child custody and visitation laws. In scores of decisions the state courts have upheld laws despite applying strict scrutiny. See, e.g., In re L.B.S. v. L.M.S., 826 So. 2d 178, 187 (Ala. Civ. App. 2002) (upholding under strict scrutiny a grandparent visitation law); Jackson v. Tangreen, 18 P.3d 100, 104 (Ariz. Ct. App. 2000) (same); In re CM., 74 P.3d 342, 345-46 (Colo. Ct. App. 2002) (same); Sightes v. Barker, 684 N.E.2d 224, 227-30 (Ind. Ct. App. 1997) (upholding under strict scrutiny a grandparent visitation law, although expressing uncertainty about the applicable standard); In re Guardianship of Blair, No. 01-1565, slip op. at 3-4 (Iowa Ct. App. Jan. 29, 2003) (upholding under strict scrutiny a grandparent visitation law); Blixt v. Blixt, 774 N.E.2d 1052 (Mass. 2002) (same); Rideout v. Riendeau, 761 A.2d 291, 303 (Me. 2000) (same); Fausey v. Hiller, 851 A.2d 193, 199 (Pa. Super. Ct. 2004) (same); see also In re R.C., 745 N.E.2d 1233, 1242 (Ill. 2001) (upholding statute providing adoptive parents with the right to seek permanent custody over birth mother's objection when birth mother is mentally impaired); In re D.W., 799 N.E.2d 410, 425-27 (Ill. App. Ct. 2003) (upholding a statute creating a presumption of parental unfitness when a parent has been convicted of aggravated or heinous battery, or attempted murder of any child), overruled by 827 N.E.2d 466, 483-85 (Ill. 2005); In re O.R., 767 N.E.2d 872, 876-79 (Ill. App. Ct. 2002) (upholding a legal determination of parental unfitness when controlled substances are found in two of parent's children at birth).
346. N= 4.
347. See, e.g., Qutb v. Strauss, 11 F.3d 488, 492-95 (5th Cir. 1993) (upholding juvenile curfew); Nunez v. City of San Diego, 114 F.3d 935, 952 (9th Cir. 1997) (invalidating juvenile curfew).
348. N = 3.
349. See, e.g., Warrick v. Snider, 2 F. Supp. 2d 720, 729 (W.D. Pa. 1997) (invalidating durational residency requirement for eligibility for welfare benefits).
350. See, e.g., Mountain States Legal Found. v. Espy, 833 F. Supp. 808, 816 (D. Idaho 1993) (upholding travel restriction in national forest); Pottinger v. City of Miami, 810 F. Supp. 1551, 1553 (S.D. Fla. 1992) (invalidating policy of arresting homeless people for sleeping in public).
351. N = 3.
352. N = 21.
353. N = 14.
354. N=11.
355. One group of cases that is excluded from this category is campaign finance contribution limits cases, which Buckley held was protected by the freedom of association. See Buckley v. Valeo, 424 U.S. 1, 24-28 (1976). Contribution limits, like other forms of campaign finance laws, are usually considered speech limitations despite Buckley and thus have for purposes of this study been included in the free speech category.
356. Williams v. Rhodes, 393 U.S. 23, 30 (1968).
357. See Anderson v. Celebrezze, 460 U.S. 780, 788-89 (1983) (describing voting rights as fundamental but stating that not all regulations are "constitutionally-suspect burdens"); Burdick v. Takushi, 504 U.S. 428, 434 (1992).
358. 415 U.S. 767 (1974). The Court upheld a ballot access law that required parties polling less than two percent of the vote in the preceding gubernatorial elections to nominate candidates through conventions and to show support among one percent of voters via petition signatures. The Court explained that requiring a modicum of voter support was a justifiable means of advancing the state's interest in electoral integrity and avoiding voter confusion - necessary components of an effective, meaningful vote. Id. at 783 n.14.
359. Id. at 783.
360. 415 U.S. 724 (1974). The Court upheld a state's denial of a ballot position to any candidate currently running as an "independent" who had been a registered member of a political party in the previous year, reasoning that the state's "compelling" interest in avoiding voter confusion was furthered by limits on the number of candidates on the ballot. Id. at 734-36. The Court was also clear that strict scrutiny was not necessarily fatal in fact: "The rule is not self-executing and is no substitute for the hard judgments that must be made." Id. at 730.
361. Id. at 730.
362. See, e.g., Swamp v. Kennedy, 950 F.2d 383, 386 (7th Cir. 1991) (upholding fusion ban); Libertarian Party of Kentucky v. Ehrler, 776 F. Supp. 1200, 1211 (E.D. Ky. 1991) (invalidating nominating petition signature requirement).
363. 468 U.S. 609, 623 (1984). The Court held that the Jaycees had expressive associational rights invaded by the antidiscrimination law, which "reflect [ed] the State's strong historical commitment to eliminating discrimination and assuring its citizens equal access to publicly available goods and services" - ends the Court deemed to be "compelling state interests of the highest order." Id. at 622-24. Roberts did not explicitly identify the standard being applied, and some argue that the Court merely adopted a "balancing-of-interests" test instead of strict scrutiny. See id. at 632 (O'Connor, J., concurring) (describing the majority's test as a "balancing-of-interests" test). There is language in the opinion supportive of this view, too - a sign of the opacity of the majority opinion. Id. at 624. But several lower courts have agreed with the Third Circuit's statement that the "Roberts opinion teaches that strict scrutiny is to be applied to infringements on the freedom of [expressive] association." Salvation Army v. Dep't of Cmty. Affairs of New Jersey, 919 F.2d 183, 200 (3d Cir. 1990); see also Korenyi v. Dep't of Sanitation, 699 F. Supp. 388, 394 (E.D.N.Y. 1988) (arguing that the Supreme Court "has engaged in strict scrutiny" of laws restricting association); Bhagwat, supra note 51, at 971 (terming Roberts a strict scrutiny case).
364. See, e.g., Louisiana Debating and Literary Ass'n v. City of New Orleans, 42 F.3d 1483, 1500 (5th Cir. 1995) (invalidating application of anti-discrimination law to private club); McCabe v. Sharrett, 12 F.3d 1558, 1569-70 (11th Cir. 1994) (upholding reassignment of police chiefs secretary after secretary married an officer).
365. N = 4. See, e.g., Arizona Libertarian Party, Inc. v. Bayless, 351 F.3d 1277, 1281 (9th Cir. 2003) (invalidating state law imposing semiclosed primary on parties); Cool Moose Party v. Rhode Island, 6 F. Supp. 2d 116, 121-22 (D. R.I. 1998) (same).
366. N = 7. See, e.g., Grider v. Abramson, 180 F.3d 739, 752-53 (6th Cir. 1999) (upholding city's requirement that participants in a KKK rally at a courthouse pass through metal detectors on public safety rationale); Déjà vu of Nashville, Inc., v. Metro. Gov't, 274 F.3d 377, 396 (6th Cir. 2001) (upholding nude dancing buffer zone because it deters crime).
367. p = .627.
368. Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 188 (1979) (Blackmun, J., concurring).
369. Wells, supra note 80, at 160; see also Eugene Doherty, Equal Protection Under the Fifth and Fourteenth Amendments: Patterns of Congruence, Divergence and Judicial Deference, 16 OHIO N.U. L. REV. 591, 595 (1989) ("If strict scrutiny virtually insures that a statute will fail judicial review, and if application of the classic rational basis test yields the opposite result, then it would seem as if the Court's only real 'decision' is about which standard to apply.").
370. Sullivan, supra note 87, at 296.
371. Grutter v. Bollinger, 539 U.S. 306, 327 (2003).
372. Johnson v. California, 543 U.S. 499, 515 (2005).