Dorf on Law: Endorsement, Coercion, and the Nature of Legal Tests

Dorf on Law: Endorsement, Coercion, and the Nature of Legal Tests

By Michael Dorf (Cornell)

First, as Holmes famously stated in his Lochner dissent, "general propositions do not decide concrete cases." Even though constitutional tests are typically more specialized and thus less general than the constitutional text they implement, they are invariably somewhat general. That, after all, is what it means for a test to be a test--whether formulated as a rule or a standard. Even if the application of some test is straightforward in the context in which it is initially formulated, new cases will arise as to which the test will be indeterminate; or the test will be determinate but it will determine a plainly wrong (because unanticipated) answer, calling for the test's modification. Tests are necessary but insufficient to implement the Constitution.

Second, losers in legal debates typically do not give up. They regroup and fight on another front. Thus, prior to the Supreme Court's 1989 decision in Richmond v. Croson, justices who thought race-based affirmative action generally permissible argued for intermediate scrutiny. After they lost that battle, they argued--successfully--that the kind of strict scrutiny applicable to such affirmative action programs was different from conventional strict scrutiny in that it is not "fatal in fact." Opponents of affirmative action have been pushing back since then and will likely triumph next term in the UNC and Harvard cases. One sees a similar dynamic in the Court's free exercise jurisprudence. Since Employment Division v. Smith, the Court has officially rejected claims for religious exceptions from neutral laws, but increasingly it finds laws that seem religion-neutral are discriminatory.  In these two examples we see that once the Court settles on a test, the debate over what test to apply morphs into a debate over what the applicable test means.

Third, it is sometimes assumed that the choice between two (or more) tests poses a question of whether to adopt a liberal or conservative approach. We talk about strict, narrow, and forgiving tests, for example. That's sometimes true but not always. This week's oral argument in Kennedy v. Bremerton School District was a nice illustration....

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