Fulton and AFP Teach Us That Justices Barrett and Kavanaugh Do Not Like Strict Scrutiny

They prefer "nuance."


This term, the Court decided two significant First Amendment cases that divided the six conservatives down the middle. First, in Fulton, there was a split about whether Smith should be overruled. Justices Alito, Thomas, and Gorsuch would have overruled Smith, and reviewed neutral laws with strict scrutiny. Chief Justice Roberts and Justices Kavanaugh and Barrett declined to overrule Smith. The latter two seemed open to reversing Smith, but suggested that strict scrutiny may not be warranted for neutral laws. Justice Barrett wrote:

Yet what should replace Smith? The prevailing assumption seems to be that strict scrutiny would apply whenever a neutral and generally applicable law burdens religious exercise. But I am skeptical about swapping Smith's categorical antidiscrimination approach for an equally categorical, strict scrutiny regime, particularly when this Court's resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced.

The Court's conservatives formed a similar fissure in AFP v. Bonta about the standard of review. Justice Thomas would have used strict scrutiny to review the California disclosure act.

Laws directly burdening the right to associate anonymously, including compelled disclosure laws, should be subject to the same scrutiny as laws directly burdening other First Amendment rights. 

Justices Alito and Gorsuch seemed open to strict scrutiny, but did not decide the issue here.

Because the choice between exacting and strict scrutiny has no effect on the decision in these cases, I see no need to decide which standard should be applied here or whether the same level of scrutiny should apply in all cases in which the compelled disclosure of associations is challenged under the First Amendment. 

These three Justices did not join Part II-B-1 of the Chief's opinion. Only Justices Kavanaugh and Barrett joined that part of the opinion. The 3-3-3 split arose again. The Chief adopted something called "exacting scrutiny." It isn't exactly strict scrutiny. The government does not need to show it is using the "least restrictive means." Rather, the government must show "narrow tailoring."

This move is not surprising from the Chief. He always rejects rigid tests. Justice Barrett signaled in Fulton that she prefers "nuance." And she followed this path in AFP. Indeed, Justice Sotomayor's AFP dissent cited Justice Barrett's Fulton concurrence:

In other words, to decide how closely tailored a disclosure requirement must be, courts must ask an antecedent question: How much does the disclosure requirement actually burden the freedom to associate?

This approach reflects the longstanding principle that the requisite level of scrutiny should be commensurate to the burden a government action actually imposes on First Amendment rights. . . . see also Fulton v. Philadelphia, 593 U. S. ___, ___ (2021) (BARRETT, J., concurring) (slip op., at 2) (noting the "nuanced" approach the Court generally takes in the"resolution of conflicts between generally applicable laws and . . . First Amendment rights").

To get to five, you will need "nuance."

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  1. ‘ To get to five, you will need “nuance.” ‘

    Wait until seven is the new five.

    Maybe not so long a wait.

  2. Hmm, six so-called originalists split on what Justice-made-up standard (exacting or strict) to apply to First Amendment rights.

    1. So very principled are these conservative jurists

  3. I hope this isn’t a foreshadowing of the approach they are going to take on the right to bear arms. But I’m confident that even intermediate scrutiny would get you to a Shall Issue requirement. The government may have a an important interest in ensuring that people carrying guns are law abiding, and a licensing requirement may further that and be related to that interest. But neither strict scrutiny or intermediate scrutiny can serve as an excuse to erase a right completely.

    As for modern sporting rifles and large capacity magazines, they are so common and used so infrequently in crimes that it’s hard to see how bans can be reasonably be related to the governments interest in reducing crime. Stiffer penalties for using LCMs and MSR seems to be a much better way to handle a very small subset of criminal activity, without burdening millions of lawful users.

    1. Ahh, the kind of facts and logic that have eluded gun prohibitionists for decades. All I can say is good luck with the facts and logic. The laws are to save babies!

    2. Yeah, but what good is a general right to carry, if they require a 16 hour class every year, a $500 fee, requiring individual guns to be listed on your permit (like New York State does), prohibiting carry at any stores, restaurants, public transportation, or anything else they deem “sensitive,” and so on.

      If this is the level of “nuance” they’re going to sign on to, expect a right to carry on the sidewalks only (but not within 500 feet of whatever they deem sensitive).

    3. “Stiffer penalties for using LCMs and MSR seems to be a much better way to handle a very small subset of criminal activity, without burdening millions of lawful users”

      Sorry, but that’s stupid. The law right now requires a 5 year minimum sentence for carrying a gun during a crime of violence, but 30 years if it’s a machine gun. Your way would be the same. So a criminal gets double the sentence because his rifle had a collapsible stock? That’s not rational either.

    4. <blockquote. The government may have a an important interest in ensuring that people carrying guns are law abiding,

      If such an eventuality comes to pass then say goodby to all your rights.

      If you can license one of them you can license them all.

    5. “But I’m confident that even intermediate scrutiny would get you to a Shall Issue requirement.”

      That’s why you should expect quasi-polycyclic Schrodinger scrutiny: It’s strict in every instance but whichever one is before the Court at any given moment, in which case it’s nearly rational basis.

    6. The death penalty doesn’t deter murderers. Do you think stiffer penalties will deter people who feel they have no options in life except violent crime?

    7. Kavanaugh goes by “text and tradition”…and pro-2A states have traditionally regulated handguns outside the home. And a pro-2A president signed feds school zone legislation.

      1. Text and tradition is a little flawed in deciding bill of rights cases, because the 2nd amendment was just incorporated.

        It wouldn’t have made much sense to follow states text and tradition on the states attitude to the 4th amendment before it was incorporated and the federal courts started taking it seriously.

        I’d say any state law post Slaughterhouse is pretty much useless in determining what’s deserves any deference.

        And even the numerous states and localities that banned concealed carry almost always allowed open carry before that.

      2. You can only go so far with tradition when it contradicts text. And there are a lot of cases like that because the Court went a long, long time refusing to enforce the text, allowing contrary traditions to grow up. A “Text and tradition” test would have been fine with preserving segregation forever, for instance.

        The actual tradition here is one of oppressive gun laws, which were only intended to be enforced against distrusted minorities. The majority were basically left alone to do as they liked.

        Then, later, those in power came to distrust everybody but themselves, and sought to enforce those oppressive laws more widely, though, of course, not against each other.

        Such ‘traditions’ deserver no respect.

      3. Who is the “pro-2A president” to whom you refer?

  4. IMO, ‘Strict Scrutiny’ should always be the standard and the only standard.

    1. Agreed: Multiple levels of scrutiny is just an excuse to treat the Constitution like an ala carte menu, upholding whatever 5 justices approve of, to the extent they approve of it, and the rest of the Constitution is just a helpful list of suggestions.

      And they’re all misnamed, anyway. Rational basis is actually ‘not chewing on the furniture crazy’ basis; It merely requires the judge applying it to be able to imagine a basis for the law which you wouldn’t have to be clinically insane to adopt, but that basis doesn’t have to be genuinely rational or the actual basis the law was enacted on.

      Even “strict” scrutiny allows the Constitution to be violated if the judge thinks the government has a good reason for doing so.

      There isn’t any level of scrutiny at all that’s just, “Obey it already, no excuses.” And THAT is the only level of scrutiny an honest judiciary would use.

        1. Stevens always spoils it with his living constitutionalism, but he got in a few good jabs anyway.

      1. And, for example, in Highland Park, the 7th Circuit upheld a ban on “assault weapons” on the basis that making the public “feel” safer is a substantial benefit that justifies the infringement. If the judge determines that that is a “compelling” state interest, then even strict scrutiny doesn’t really provide any protection.

  5. Exacting scrutiny was applied in McIntyre v. Ohio Elections Commission, which found Ohio’s law against anonymous campaign literature unconstitutional back in 1995, long before Justice Roberts joined the Court.

    “Something called exacting scrutiny”?

    Look, if you’re a law professor and you don’t know anything about the background behind the key precedents, standards, and reasoning behind a decision, may I suggest not commenting on it? You don’t have to comment on every decision. Or you could wait and read up and only comment after that. You don’t have to be the first to say something.

    Exacting scrutiny is a somewhat obscure standard, and I don’t really like the fact that there are so many standards floating around either. I agree with you that it opens up a lot of opportunity for essentially political calue judgments. But this particular standard has been around for some time, and it has been applied in cases that are at least arguably similar to this one.

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