I noticed something slightly odd about the Supreme Court’s decision in McCullen v. Coakley — the way in which it characterized two of its prior precedents.
At the time, I assumed that the omission of the phrase “strict scrutiny” was intentional — that some members of the Court were unwilling to join an opinion upholding the law under strict scrutiny, but were willing to uphold it under some slightly more amorphously-articulated standard (perhaps thinking that the national security context was different).
I guess not. Here’s McCullen:
It is not unusual for the Court to proceed sequentially in applying a constitutional test, even when the preliminary steps turn out not to be dispositive. See, e.g., Bartnicki v. Vopper, 532 U. S. 514, 526–527 (2001); Holder v. Humanitarian Law Project, 561 U. S. 1, 25–28 (2010) (concluding that a law was content based even though it ultimately survived strict scrutiny).
Second, McCutcheon and Buckley. Those campaign finance cases had analyzed limits on campaign contributions under a “rigorous standard of review” under which the government must “demonstrate a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgement of associational freedoms.”
Once again, McCullen converts this into one of the “hornbook” levels of scrutiny:
The Court does sometimes assume, without deciding, that a law is subject to a less stringent level of scrutiny, as we did earlier this Term in
McCutcheon v. Federal Election Commission, 572 U. S. ___, ___ (2014) (plurality opinion) (slip op., at 10). But the distinction between that case and this one seems clear: Applying any standard of review other than intermediate scrutiny in McCutcheon—the standard that was assumed to apply—would have required overruling a precedent.
I confess, I found both of these characterizations a little surprising. I had thought that both McCutcheon and Humanitarian Law Project went out of their way to avoid using terms like “strict scrutiny” and “intermediate scrutiny.” But I guess I was wrong, and the terminology turned out not to be so important after all. (For what it’s worth, all three opinions — McCullen, McCutcheon, and Humanitarian Law Project — were written by the Chief Justice.)
(Thanks to Danielle Zimmerman for pointing out the former change.)