The Volokh Conspiracy

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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."