By: R. Randall Kelso*
Abstract
Over the last 50 years, the Supreme Court has used the term “exacting scrutiny” in a number of contexts. Sometimes “exacting scrutiny” appears to refer to strict scrutiny. Other times, it appears to resemble intermediate review. Other times “exacting scrutiny” appears to represent a standard of review between strict scrutiny and intermediate review. In addition, as least one commentator has compared the term “exacting scrutiny” to Justice Breyer’s use in opinions of the term “proportionality” review. This Article intends to clarify the four kinds of “exacting scrutiny” used in Supreme Court majority opinions and discuss the alternative use by Justice Breyer of the term “proportionality” review. The conclusion of this Article is that the Court should drop the terms “exacting scrutiny” and “proportionality” review in favor of explicit adoption of whatever standard of review is intended to be used in the particular case. That would provide lower courts will better guidance on how to resolve each of the cases in which the term “exacting scrutiny” is currently used, particularly in cases involving campaign finance, freedom of association, and commercial speech.
*Spurgeon E. Bell Distinguished Professor of Law, South Texas College of Law Houston. B.A., 1976, University of Chicago; J.D., 1979, University of Wisconsin- Madison School of Law.