Contributors to Law and Liberty have continued the lively debate between conservative proponents of “judicial restraint,” who are concerned about increased “judicial activism,” and libertarians who view the judiciary as a bulwark against majoritarianism. The general theme is a familiar one, even if the labels themselves sometimes impede understanding. The crux of the debate often turns on the standard of review courts should apply when laws are challenged, and which party should bear the burden of proof.
Under the so-called “rational basis” test formalized by the U.S. Supreme Court in the 1938 decision in United States v. Carolene Products Co., economic regulations are presumed to be constitutional, and are upheld unless the court concludes they are wholly arbitrary or irrational. Pursuant to that decision’s famous Footnote 4, however, courts apply a considerably more exacting standard of review, and shift the burden of proof to the government, when so-called “fundamental rights” are at stake (such as freedom of speech), or when laws allegedly burden “discrete and insular minorities.” This heightened level of review, known as “strict scrutiny,” often results in judicial invalidation of the challenged law when the government is unable to demonstrate a “compelling state interest” (leading legal scholars to quip that the more exacting standard of review is “strict in theory, fatal in fact”).
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