Standards of Review

The flurry of Supreme Court decisions at the end of the term tackled some of the most contentious social topics in our national dialogue, with much weight given to how the "conservative" or "liberal" justices voted.  Predicting the outcome of a case is nearly impossible, even when taking into account the assumed ideology of the nine Justices.  Recent polls show the high court approval rating at new lows, with only 28% affirming the Supreme Court as doing a "good" or "excellent" job.  Many news pundits are quick to point to a partisan court divided between the conservatives and liberals as the main reason the court's approval rating has tumbled.  The hyper-partisan 5-4 votes are the cases which make headlines, but the reality is over 50% of all cases in the last term were unanimous 9-0 decisions.  These cases are all incredibly important, but the large consensus does not make for high ratings.  While political ideology inevitably affects the Supreme Court decisions in some capacity, there are set legal theories which the nine Justices follow to help them analyze the case based on the law, constitution, and facts. 

One critical legal theory used by the Supreme Court is known as the Standards of Review, and is applied typically in civil litigation linked to the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment.  As one of the most litigated portions of the U.S. Constitution, it was adopted in 1868 as a response to the Civil War during the efforts of Reconstruction.  Section 1 of the Fourteenth Amendment is what has become referred to as the Equal Protection Clause and Due Process Clause and states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The three tiered test known as the Standards of Review has been adopted by the Supreme Court as a legal method to look at cases which come before them and deal with the Equal Protection Clause.  Congress often has to pass legislation which deals with the classification the placement of restrictions on certain persons, either purposeful advantage or disadvantage.  An example of this would be citizens who are 20 and not legally allowed to drink alcohol in the U.S., while those who are 21 are permitted to drink.  This is a law which classifies and singles out certain individuals because the government claims there is a compelling government interest which validates the age limit for alcohol consumption.  The drinking age law prohibits anyone under the age of 21 from drinking and places a limit on their freedom.  This is where the Standards of Review comes into play and helps the Justices examine laws to determine if they are legitimate and serve a compelling government interest.  The three standards of review are: 1) Rational Basis - minimum scrutiny, 2) Intermediate Scrutiny - middle-tier scrutiny, and 3) Strict Scrutiny - most narrow level of scrutiny.  Here is a chart that helps break down the levels of scrutiny, and explain the steps the Supreme Court would take in deciding if a law is valid or unconstitutional.

SCRUTINY TESTS AND CATEGORIZATIONS (FOR EQUAL PROTECTION & SUBSTANTIVE DUE PROCESS)
STEP 1. The Supreme Court Justices decide - WHAT IS THE CLASSIFICATION APPLIED?   a) The classification is on the face of the law or b) If the law is facially neutral; there is both a discriminatory intent and a discriminatory impact
STEP 2. The Supreme Court Justices decide - WHAT IS THE LEVEL OF SCRUTINY?
Strict Scrutiny   Law must be necessary to achieve a compelling government purpose.   SUSPECT CLASSES: ·         Race ·         National Origin ·         Alienage –generally   FUNDAMENTAL RIGHTS: ·         Travel ·         Parenting ·         Marriage ·         Procreation ·         Abortion = undue burden test ·         Voting ·         Gun Ownership ·         Privacy ·         Religion	Intermediate Scrutiny   Law must be substantially related to an important government purpose. (Gender) Government must show exceedingly persuasive justification for the discrimination   CLASSES: ·         Gender ·         Illegitimacy ·         Undocumented Alien Children   NON-FUNDAMENTAL RIGHTS: ·         Right to Refuse Medical Treatment (possibly if related to religion) ·         Homosexual Activity	Rational Basis   Law must be rationally related to a legitimate government interest   NON-SUSPECT CLASSIFICATIONS: ·         Alienage classifications related to self-government and democratic process   ·         Congressional regulation of aliens ·         Age ·         Handicap ·         Wealth/Poverty ·         All other classifications   ALL OTHER NON-FUNDAMENTAL RIGHTS
STEP 3. The Supreme Court Justices decide - DOES THE LAW MEET THE LEVEL OF SCRUTINY?

I hope this chart helps break down the three levels of scruitny that are part of the Standards of Review test.  The Supreme Court is able to apply this legal theory when relevant cases come before them, and allows the Justices to approach a case using the same legal reasoning.  While you will likely hear the 5-4 decisions on the news, legal theories like the level of scrutiny is what helps the court actually have a majority of their opinions unanimous 9-0 decisions!

Bloomberg's Big Gulp Ban Fizzles

As most New Yorkers are aware, Mayor Michael Bloomberg has been fighting to implement a ban on the sale of any cup or bottle of sweetened drinks larger than 16 fluid ounces.  The proposed law is an effort by Bloomberg and New York City to combat the rapid increase of obesity throughout the city, while opponents deride the effort as an encroachment of civil liberties.  On Tuesday, an appeals court upheld a lower court finding that the sugary drink ban was unconstitutional and an overreach in authority by the Mayor and Board of Health.  The appellate judges wrote in a unanimous decision that "Like the Supreme Court, we conclude that in promulgating this regulation the Board of Health failed to act within the bounds of its lawfully delegated authority".  While the big gulp ban has been found to be unconstitutional, it is important to understand the details of the law and not simply rely on catchy headlines from cable news. 

The Facts: The ban is not a law, rather a regulation passed by New York City's Board of Health and was highly touted by Mayor Michael Bloomberg.  The ban went into effect in March, but litigation from the beverage industry among others brought about a court ordered injunction while the constitutionality of the ban went through the judicial process.  The ban applied to any cup or bottle of sweetened drink larger than 16 fluid ounces BUT there were a significant number of notable exemptions.  The drink ban does not apply to diet-sodas, fruit juices, dairy based drinks, or alcoholic beverages.  The ban also does not apply to grocery or convenience stores. The Board of Health and Mayor Bloomberg said the ban is an effort to combat the out of control obesity epidemic in the city, and the numbers are startling with 60% of New York City adults classified as obese and 40% of NYC school children classified as obese.  Officials and doctors argue, these rapidly rising obesity numbers directly effect all other New Yorkers through rising health care costs and other fees associated with providing care for those individuals.

 

While the obesity numbers are dire, the courts have found that the ban to be unconstitutional because it came from the executive body of the city, a violation of the state principle of separation of powers.  The court found that the Board of Health and Mayor were acting too much like a legislative body through the enactment of sweeping policy change.  They also took issue with the large amount of exemptions saying if it were a legitimate ban it would apply to all public and private enterprises, not only the hand selected ones.  While the drink ban clearly lacks constitutional merit, the court made sure to clarify nothing in the decision was meant to "express an opinion on the wisdom of the soda consumption restrictions, provided that they are enacted by the government body with the authority to do so".   This seems to leave the door open in case the appropriate legislative body took up the issue. 

 

The reality is the Mayor and Board of Health likely overstepped their authority by implementing the sugary drink ban.  The further hurt their cause by allowing numerous loopholes and exemptions, which directly contradict the law.  If a legislative body like the city council took up the issue and implemented a similar ban, they would have a strong claim it is in the best interest of the public based on the rising costs of health care which is being unfairly passed on to other residents.  But the Bloomberg and the Board of Health are part of the executive branch and therefore lack the authority to implement sweeping policy changes, which is the role of the legislature.  I predict the ban in its current form likely will not be allowed by the courts, and agree with the appeals court that the effort is unconstitutional.  As always, please feel free to share your thoughts!