Abstract:
To this point, the judicial test of exacting scrutiny has been applied most
frequently in electoral campaign funding and variously related cases. But
exacting scrutiny should certainly not be thought of as applicable only to
campaign or election-related cases. Nor, even more importantly, should exacting
scrutiny be thought of as either a synonym for traditional strict scrutiny, or as an
awkward compromise between traditional strict judicial scrutiny on the one hand
and either mid-level or minimum scrutiny on the other.
Once this Article establishes a preliminary understanding of exacting
scrutiny, the Article then turns more particularly to the relationship between
exacting scrutiny and the proportionalist, balancing-oriented, multi-faceted, and
checklist-style jurisprudence often favored by, most prominently, Supreme Court
Justice Stephen Breyer. As it turns out, Justice Breyer's scholarship, and his
judicial decisions in particular contexts, supply some impetus for applying
exacting scrutiny, but only to a limited degree. The Article then addresses some broader questions of exacting scrutiny
in the contexts of constitutional rights absolutism; of entirely unfettered
balancing; of problems of commensurability and the more general comparability
of values, rights, and interests; and of the problem of case outcome
unpredictability and indeterminacy. On this basis, the Article then ventures a summary of the most significant
advantages and disadvantages of a broad judicial recourse to exacting scrutiny.
As it turns out, the judicial standard of exacting scrutiny attractively offers the
advantages of formulaic simplicity, built-in normativity, ready understandability,
almost limitless flexibility, potential sensitivity to all relevant claims of right and
interest, and a potentially universal scope and application.
