Judicial Review and Strangeness

One theme that connects Windsor and Shelby County is judicial action was justified, in part, because the statute in question was unusual.  The Chief Justice’s opinion striking down Section 4 of the Voting Rights Act repeated ad nauseum that preclearance was an extraordinary remedy at odds with traditional constitutional principles.  Justice Kennedy, meanwhile, stressed that the Defense of Marriage Act was unique in its deviation from the practice using state law to define marriage.

This idea is not just limited to these two cases.  Much of the argument against the individual health insurance mandate, as Josh Blackman discusses in his forthcoming book, came down to the fact that it was unprecedented.  Romer is another example where the Justices emphasized the strangeness of the law before them to explain why it could not stand.  (I’m going to think about other examples–Schechter Poultry and the National Industrial Recovery Act is an older one.)

Setting aside arguments about whether these statutes really were unusual, I’m wondering whether this concern constitutes an independent theory of heightened scrutiny (alongside originalism, Thayer’s idea of a “clear mistake,” representation-reinforcement, and so on)  More on this in subsequent posts.

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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10 Responses

  1. Justice Kennedy stressed in Romer how unprecedented the law was. Thanks for the link (and its Blackman, not Blackmun like the justice)

  2. Gerard Magliocca says:

    Oops! Sorry Josh. Not enough coffee this morning.

  3. No worries. I get that all the time. Of all the errors, that’s not a bad one 🙂

    I’ve had the occasion to reread Moreno, Cleburne, Romer, Lawrence in light of an article I’m working on about heightened rational basis scrutiny. Your insight is right on. All stressed how unprecedented the laws in question were.

  4. Joe says:

    Is it an aspect of “common” law interpretation?

  5. Gerard Magliocca says:


    I think so. The idea that “statutes in derogation of the common law” should be construed narrowly relates to what I’m talking about.

    Could be an article here. Who knows!

  6. Joe says:

    Thanks. A “common law” view of constitutional interpretation [to be fairly literal] could have a bias to “how things commonly have been done,” change coming, but requiring special justification. Prof. Michael Dorf at his blog (and Verdict) has cited some concern regarding the principle. He also connects the two cases.

  7. Orin Kerr says:

    I think the focus on the novelty of a law is offered as a sort of Burkean excuse for doctrinal innovation. It says, in effect, “We’re not changing the law or rocking the boat; we’re just responding in an unusual way to an unusual statute.” Or at least it tries to; I personally don’t find the meme persuasive.

  8. Tyler M. says:

    I’m a little late to this discussion, but Justice Kennedy made the “heightened scrutiny” for unique laws point quite explicit in the argument over the individual mandate. He asked the Solicitor General: “Assume for the moment that this is unprecedented. This is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?” (T 11:21-12:6, http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-398-Tuesday.pdf)

  9. Dan Markel says:

    This idea also resonates with John Stinneford’s interpretation of the 8th Amendment’s cruel and unusual clause, where unusual is understood as contrary to long-standing practice.

    Talk about status quo bias 🙂

  10. Kyle says:

    One sometimes sees a similar dynamic when state courts reconsider precedent that has left them isolated among their peers. The failure of other states to agree, and the resulting outlier status of the jurisdiction, is often cited as an affirmative reason to rejoin the herd.

    The wisdom of crowds, and all that.