- OK, LET'S GO AHEAD AND GET STARTED
WITH THE TOPIC FOR NOW--
"LEVELS OF SCRUTINY, JUDICIAL ANALYSIS."
AND A NOVICE WOULD JUST ASSUME ANYTIME THAT THE SUPREME COURT
ANALYZES OR REVIEWS A CASE THAT THEY WOULD ALL BE TREATED
EQUALLY, AND UNFORTUNATELY, THAT'S NOT TRUE.
WHAT THE COURT DOES DO--IT TAKES A LOOK AT THE ISSUE,
AND DEPENDING UPON THE PARTICULAR ISSUE, WE WILL SEE
THAT THERE IS GOING TO BE A DIFFERENT LEVEL OF SCRUTINY OR
A LEVEL OF ANALYSIS THAT IS APPLIED TO THAT
PARTICULAR ISSUE.
SO LET'S RUN THROUGH THIS AND PUT OUT IN FRONT OF US
ON THE SCREEN AND ALSO VERBALLY HERE WHAT'S
BEING DISCUSSED.
SO THE SUPREME COURT AND LEVELS OF SCRUTINY, SOMETIMES
REFERRED TO AS LEVELS OF ANALYSIS.
AND THE WORD "SCRUTINY" HELPS OUT.
IT'S A LITTLE BIT MORE PARTICULAR.
IT GIVES US A SENSE OF WHAT'S GOING ON.
HOW CLOSELY DO THE 9 JUSTICES SCRUTINIZE OR ASSESS THE CASE
BEFORE IT.
SO FIRST, JUST THE DESCRIPTIONS OF WHAT THOSE
TERMS REFER TO.
FIRST, STRICT SCRUTINY, AS WE CAN SEE OR AS
YOU CAN HEAR.
THE COURT APPLIES THIS STANDARD TO CASES INVOLVING
FUNDAMENTAL FREEDOMS AND RACIAL CLASSIFICATIONS,
AND WITH RESPECT TO SELECTIVE INCORPORATION, THE COURT,
ON A CASE-BY-CASE BASIS, DECIDES WHAT IS A FUNDAMENTAL
FREEDOM IN A DEMOCRACY, AND THERE IS TABLE 4-1,
THERE'S A TABLE THAT SHOWS THESE INCORPORATING CASES OVER
THE YEARS, AND IN 1925, GITLOW VS. NEW YORK,
IS THAT INCORPORATING CASE FOR FREEDOM OF SPEECH.
ASSEMBLY, BEING ABLE TO GATHER, AND PERHAPS THE LINK THERE IS
ADDRESSED TO POLITICAL RALLIES AND SPEECH--SPEECH-MAKING OR
COMMUNICATING IDEAS.
THOSE ARE DEEMED AS FUNDAMENTAL FREEDOMS THAT
DESERVE THE HIGHEST PROTECTIONS FROM THE COURT,
AND IF THERE IS A LAW OR A GOVERNMENT IS GOING TO
INFRINGE UPON THEM, IT'S GOING TO BE THE MOST STRINGENT TEST
THAT HAS TO BE MET TO SATISFY THIS LEVEL OF ANALYSIS.
SO STRICT SCRUTINY IS ONE PARTICULAR LEVEL OF ANALYSIS
THAT THE COURT CAN APPLY.
THE OTHER TWO THAT YOU CAN SEE ON THE SCREEN HERE--IF WE GO
ALL THE WAY DOWN TO THE BOTTOM, THE LOW LEVEL
OF SCRUTINY, WHICH IS VERY DEFERENTIAL, AND IT'S
EVERYTHING ELSE THAT IS NOT GENDER OR NOT IN THE STRICT
SCRUTINY LEVEL OF ANALYSIS INVOLVING RACIAL
CLASSIFICATIONS OR THOSE ON A CASE-BY-CASE BASIS THAT
THE COURT HAS DEEMED AS FUNDAMENTAL
IN A DEMOCRATIC SOCIETY.
SO THERE ARE 3 LEVELS, AND THEY EACH ARE DIFFERENT.
STRICT--THE HARDEST; KIND OF A MID LEVEL OR HEIGHTENED
SCRUTINY, ALSO CALLED AN INTERMEDIATE LEVEL
OF SCRUTINY; AND THEN THE LOW LEVEL.
SO THOSE ARE THE 3 LEVELS.
WITH EACH OF THE LEVELS COMES A CORRESPONDING TEST THAT HAS
TO BE MET.
SO NOW LET'S TAKE A LOOK AT THE LEVELS OF SCRUTINY
AND THEN THE TEST.
HOW DO THE JUSTICES APPLY THE TEST?
AND SO STRICT SCRUTINY REQUIRES THAT THE GOVERNMENT
PROVE THE LAW AT HAND IS NECESSARY TO ACHIEVE
A COMPELLING STATE INTEREST AND THE REMEDY IS NARROWLY
TAILORED TO MEET THAT OBJECTIVE.
SO IF THERE IS A LAW THAT INFRINGES UPON FREE SPEECH,
THERE HAS TO BE A COMPELLING STATE INTEREST FOR FREE SPEECH
TO BE INFRINGED UPON, AND IT MUST BE INFRINGED UPON
IN THE MOST NARROW MANNER POSSIBLE.
SO THE STRICT SCRUTINY LEVEL OF ANALYSIS COMES WITH THIS
LANGUAGE THAT IS THE COMPELLING STATE INTEREST
TEST, WHICH WILL SATISFY THE STRICT SCRUTINY ANALYSIS.
NOW IF WE CONTRAST THAT WITH THE CLOSEST LEVEL OF ANALYSIS
TO IT--THE INTERMEDIATE LEVEL OF SCRUTINY--AND FOR GENDER
CASES, THOSE REQUIRE THAT ANY LAW OR PROGRAM THAT TAKES
GENDER INTO ACCOUNT THAT THERE HAS TO BE A SUBSTANTIAL
RELATION TO THAT PARTICULAR LAW AND AN IMPORTANT
GOVERNMENTAL OBJECTIVE OR AN IMPORTANT
GOVERNMENTAL INTEREST.
NOW, THIS IS A SUBTLE SHIFT IN LANGUAGE.
IT'S GOING FROM A COMPELLING STATE INTEREST TO AN IMPORTANT
GOVERNMENTAL INTEREST.
AND THERE IS A SUBTLE DIFFERENCE BETWEEN SOMETHING
THAT IS COMPELLING.
IT MUST BE DONE VERSUS JUST AN IMPORTANT INTEREST THAT--YOU
KNOW, IT'S PRETTY IMPORTANT, BUT IT'S NOT COMPELLING.
YOU SEE THE INTERPRETIVE NATURE OF LANGUAGE THAT IS
GOING ON HERE.
AND THEN WE BRING IN
THE LOWEST LEVEL OF SCRUTINY,
AND THIS JUST REQUIRES THAT THE LAW BE RATIONALLY RELATED
TO ACHIEVING A GOVERNMENTAL OBJECTIVE.
SO WITH RESPECT TO THE FREEDOM FOR THE GOVERNMENT TO PURSUE
PROGRAMS AND TO INITIATE LAW-- IF YOU ARE HOUSED AT THE LOW
LEVEL OF SCRUTINY, THAT IS THE MOST DEFERENTIAL
BECAUSE THE PROGRAM OR LAW JUST HAS TO BE
RATIONALLY RELATED.
THERE MUST BE A REASONABLE CONNECTION TO A GOVERNMENTAL
OBJECTIVE--NOT AN IMPORTANT GOVERNMENTAL OBJECTIVE,
BUT JUST A GOVERNMENTAL OBJECTIVE.
VERSUS THE OTHER TWO.
AT THE INTERMEDIATE LEVEL, THAT'S A SUBSTANTIAL RELATION
TO AN IMPORTANT GOVERNMENTAL OBJECTIVE VERSUS A COMPELLING
STATE INTEREST BEING NARROWLY TAILORED TO MEET
THAT OBJECTIVE.
SO THE LEVELS OF ANALYSIS, THE LEVELS OF SCRUTINY,
ALL CASES, ALL SUBJECT MATTERS ARE NOT TREATED EQUALLY WHEN
THEY COME BEFORE THE COURT, AND THAT CAN GO A LONG WAYS
TOWARDS HELPING US EXPLAIN THE RESULT.
AND SO WITH RESPECT TO FLAG BURNING, ONCE FLAG BURNING IS
DEEMED AS SPEECH AND NOT BEHAVIOR--AND SO IN THE CIVIL
LIBERTIES PART ONE, FLAG BURNING IS ADDRESSED,
AND IN A MUCH MORE NARROW FOCUS, WE'RE TALKING
ABOUT POLITICAL SPEECH.
SO NOT ONLY IS IT SPEECH, IT'S POLITICAL SPEECH.
WE KNOW THAT THE LEVEL OF ANALYSIS IS NOW UP THERE
IN THE REALM OF STRICT SCRUTINY.
AND JUST FROM THE RECENT SLIDES, THE TEST THAT HAS TO
BE SATISFIED SO THAT THE JUSTICES ARE OK
WITH A PARTICULAR LAW BANNING FLAG BURNING IS THAT WHAT?
WHAT IS THE TEST?
WELL, THE TEST IS THAT THERE HAS TO BE A COMPELLING
STATE INTEREST.
AND SO IS THERE A COMPELLING STATE INTEREST TO BAN
THE BURNING OF THE FLAG?
AND IF YOU READ THE OPINION, AT SOME POINT IN THE MAJORITY
AND DISSENTING OPINIONS, IF WE'RE TALKING ABOUT SPEECH,
WE'RE GONNA HAVE TO FIND SOME COMPELLING STATE INTEREST.
AND PUBLIC SAFETY OFTENTIMES IS DEEMED AS QUITE ESSENTIAL
TO THE OBJECTIVES OF ANY GOVERNMENT,
AND IT'S IMPORTANT.
IT'S A COMPELLING INTEREST.
IT'S BOTH.
IT'S THE BASIC.
IT'S MAINTAINING ORDER, RIGHT?
TEXAS FAILED, IN THE EYES OF THE MAJORITY, TO DEMONSTRATE
THAT THERE WAS ANY SUCH COMPELLING STATE INTEREST,
THAT THERE WAS ANY DANGER AT ALL TO THE PUBLIC INTEREST.
I'M NOT--WELL, THE PUBLIC SAFETY IS THE PUBLIC INTEREST,
BUT THERE WASN'T ANY CONNECTION BETWEEN FLAG
BURNING THAT MAY OCCUR OR THAT OCCURRED INTO A WIDESPREAD
THREAT OF VIOLENCE OR THE PUBLIC SAFETY.
THE COURT JUST DID NOT AGREE WITH THAT WHATSOEVER.
MORE SPECIFICALLY, YOU MIGHT FIND BETWEEN THE MAJORITY
AND DISSENTING OPINIONS, YOU MIGHT FIND A DEBATE OVER
WHAT'S THE PROPER TEST TO APPLY, RIGHT?
BECAUSE THE MAJORITY BELIEVES THIS IS SPEECH, THIS IS
SYMBOLIC EXPRESSION, AND THEREFORE YOU HAVE TO HAVE
A COMPELLING STATE INTEREST.
IF YOU'RE IN THE MINORITY-- OOP, BEFORE WE GO THERE--IF
YOU'RE IN THE MINORITY AND YOU SEE THIS AS BEHAVIOR, WELL,
NOW MAYBE YOU DON'T NEED A COMPELLING STATE INTEREST TO
REGULATE BEHAVIOR, DO YOU?
SO DEPENDING UPON HOW YOU DETERMINE FLAG BURNING--IS IT
SPEECH OR BEHAVIOR?--NOT ONLY YOU MIGHT GO DOWN THE PATH
TOWARDS BEING ABLE TO REGULATE AND EVEN BAN IT, BUT THERE'S
A CORRESPONDING TEST BASED UPON THE LEVEL OF ANALYSIS
AND SCRUTINY APPLIED THAT HAS TO BE SATISFIED.
SO IF YOU GO AWAY FROM THE REALM OF SPEECH, POLITICAL
SPEECH THAT GETS THE HIGHEST LEVEL OF ANALYSIS, TO MERE
BEHAVIOR, WELL, THERE ARE MANY IMPORTANT REASONS TO REGULATE
BEHAVIOR, VERSUS COMPELLING INTEREST, NEEDED TO REGULATE
SPEECH, MORE IMPORTANT POLITICAL SPEECH.
AND SO AS WE TRANSITION HERE
TO AFFIRMATIVE ACTION CASES,
SINCE THEY TAKE RACE INTO ACCOUNT, WE KNOW THAT THEY ARE
GOING TO RECEIVE STRICT SCRUTINY.
AND SO WHY IS IT THAT WE TALK ABOUT COMPELLING
STATE INTEREST?
IS THERE ONE FOR TAKING RACE INTO ACCOUNT?
IT'S RELATED TO THE PREVIOUS COURT CASES WHICH HAVE DECIDED
THAT RACIAL ELEMENTS IN ANY GOVERNMENTAL LAW ARE
AUTOMATICALLY ELEVATED TO THE STRICT LEVEL OF SCRUTINY
AND THE THIRD LEVEL OF ANALYSIS, THE HIGHEST LEVEL
OF ANALYSIS, AND YOU HAVE TO HAVE A COMPELLING STATE
INTEREST TO TAKE THAT INTO ACCOUNT.
SO THAT'S JUST SOME FURTHER DISCUSSION WITH RESPECT TO
COURT CASES.
CIVIL LIBERTIES AND CIVIL RIGHTS ARE HOUSED IN THE ROLE
OF THE JUDICIAL BRANCH AND DECISIONS WHICH BECOME
PRECEDENTS, SO I HOPE THIS BACKGROUND HELPS OUT
SOMEWHAT IN THAT.