This is a step towards a deeper and more established flaw: differing standards of review.
It is clearly a violation of equal protection to give "strict scrutiny" to some claims, "intermediate scrutiny" to others, and then apply only a "rational basis" test to others. All parties are entitled to "equal paternal conservation of the law" regardless of their class, be that racial, sex, or otherwise.
Early comments by justices in the 50s and 60s stated they never intended to establish such a paradigm, but law schools and lawyers adopted it and essentially foisted it upon the court.
What paradigm is available to replace it? Not a Constitutional scholar (though I love the Oyez Project's podcast of SCOTUS oral arguments!), but surely you need the Court to apply a higher standard of review when Congress treads near free speech protections than when they're setting admiralty law.
I suppose one could say, "Just read the text! Congress shall make no law..."
But I think even the strictest originalist would concur that the Framers understood there would be times when Constitutional absolutes would come into conflict and reasonable judgments made, by the Executive, Congress, or the Court.
I would push back on the need for a "paradigm" because as much as lawyers like rules and predictability, the judicial process is ultimately a matter of judgment. Discussion about the "factors" a court should consider is often just that, guidance to other courts about what may or may not be relevant. A decent phrasing of this that kind of puts it into a "paradigm" would be recent 2A cases suggesting courts should look to the "history and tradition." All that's really saying is to do your legal research and make a decision.
As conflicts between reasonable judgments, that's the judicial process. The supreme court can allow circuit splits to exist, or they can express their own opinion. Of course, the Executive is free to make reasonable judgments within their realm. They're free to not prosecute questionable cases, and they're also free to prosecute defendants on cases where the court ultimately disagrees (that the conduct was legal).
So that's clarifying, but I'm not sure how it's making an argument that "strict scrutiny" vs. "rational basis" isn't at the very least a good shorthand that captures the strongest available historical interpretation of the Court's varying powers of review.
SCOTUS doesn’t get to tell Congress they’re making the wrong tradeoff on regulating the length of fishing vessels in the North Atlantic—assuming there’s any possible rational basis for such a law.
They do get to tell Congress they’ve stepped over the line in regulating speech about vaccines on the Internet, at least without a rationale that survives a level of review commonly called “strict scrutiny”.
I took your original post to be arguing this distinction wasn’t well founded in the text of the Constitution or historical understanding of it.
Yeah, you understand and you’re right that the current rules accurately describe the current prevailing wisdom, but that’s kind of tautological.
Some of the weak spots are rational basis review being too deferential. Certainly a law is constitutional unless there is some claim to the contrary, but when it comes into conflict with individual rights, a judgment has to be made and that’s an inherently judicial task, not suited to deference.
Another weak spot is the commerce clause, because it is certainly legitimate evaluate whether the law falls within Congress’s legislative authority. Anyone who reads the enumerated powers can tell “essentially anything” would have been a lot easier write… and yet the founders enumerated specific limited areas.
It’s hard to predict exactly what they’ll say, but my best guess would be focusing more on this connection between the legislative authority and the means employed by the statute, balanced against the rights allegedly being impaired (without regard to whether those are fundamental / class based. If a law is squarely within legislative authority, then congress shouldn’t need a rational basis. Rather than saying it impairs a fundamental right, they could focus on the fact that regulation of speech is not strongly within the legislative authority. As a law ventures further from historical and transitional exercises, the basis for the law would have to get stronger.
Honestly, this isn’t a major change, but erroneous New Deal Era caselaw has corrupted the logic. Sure, in theory everything could be called interstate commerce, but regulating viewpoint based speech is a has a stronger impact on speech than on commerce. Meanwhile, regulating the length of merchant vessels falls a lot closer to regulating seagoing commerce than to speech. No need to apply different standards.
Overturning Chevron itself didn't allow for that, but the (less talked about but just as important) ruling in Corner Post did. The court ruled the default statute of limitations for an injury caused by a regulatory agency is six years from the time of first injury, instead of six years from the enactment of the policy (what it was originally). This means any interested party can create a new entity, fund it, and have it be injured by the policy they wish to challenge; and finally use it as the vehicle to sue the agency. Wherever this entity is created would then be where it'd have standing to sue, allowing for the shopping of a friendly judge.
It is clearly a violation of equal protection to give "strict scrutiny" to some claims, "intermediate scrutiny" to others, and then apply only a "rational basis" test to others. All parties are entitled to "equal paternal conservation of the law" regardless of their class, be that racial, sex, or otherwise.
Early comments by justices in the 50s and 60s stated they never intended to establish such a paradigm, but law schools and lawyers adopted it and essentially foisted it upon the court.