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Recharacterizing the levels of scrutiny in First Amendment cases?

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.

First, Holder v. Humanitarian Law Project. In that case the Supreme Court upheld a federal statute that banned material support to designated terrorist groups, reasoning that the statute appropriately furthered “an urgent objective of the highest order.” The analysis sort of mirrored the Court’s “strict scrutiny” test, which also seemed like the test commanded by precedent. And yet curiously the Court never used the words “strict scrutiny” or “compelling interest” or “narrowly tailored.”

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.)

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).



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