Defending the Middle Way: Intermediate Scrutiny as Judicial Minimalism
![handle is hein.journals/gwlr66 and id is 306 raw text is: Defending the Middle Way: Intermediate
Scrutiny as Judicial Minimalism
Jay D. Wexler*
In the last few years, Court-watchers have been particularly busy critiqu-
ing the constitutional decisions of the splintered Rehnquist Court. Two of
the recurring critiques have posited that the Justices are overly activist and
that their opinions are needlessly confusing. American Lawyer's Stuart Tay-
lor, for example, has decried both the jurisprudential mess of the Court's
recent redistricting decisions' as well as the disturbing activism that Taylor
believes marks each of the Equal Protection decisions of the 1995-96 Term-
an activism that has led him to wonder whether there is any life at all left in
the idea of judicial restraint.'2 Eva Rodriguez of the Legal Times is even
more critical of the Court's failure to issue opinions that lower courts and
lawyers can follow, noting that the justices have perplexed many court afi-
cionados, who have spent long hours trying to decipher fractured and at
times fractious decisions.3 Likewise, Linda Greenhouse, the influential New
York Times writer, has lamented both the activism of the Rehnquist Court4
and its failure to provide guidance, arguing that the Court has sometimes
spoke[n] in multiple voices so muddled as to be barely comprehensible.5
Academics and practitioners have joined the fray as well, with noted law
professors such as Erwin Chemerinsky and Supreme Court lawyers like The-
* Law clerk to The Honorable David S. Tatel, U.S. Court of Appeals for the D.C. Circuit.
J.D. Stanford Law School, 1997; M.A. University of Chicago, 1993; B.A. Harvard University,
1991. Many thanks to Thomas Grey and Kathleen Sullivan for their helpful comments and sug-
gestions, and to Robert Klieger, who is definitely entitled to my gratitude. Also, I would like
to thank Bryan Corbett, Jennifer Chung, Ryan Wallach, and the staff at The George Washington
Law Review for all their hard work and excellent editing.
1 See Stuart Taylor Jr., Drawing the Line on Racial Gerrymanders, LEGAL TIMEs, July 31,
1995, at S29 (Justice O'Connor's handiwork [in race-based electoral districting cases] is a juris-
prudential mess-a confusing and indeterminate m6lange of apparently conflicting statutory and
constitutional doctrines, which provides little useful guidance to lower courts and amounts to a
formula for endless litigation and political chaos.).
2 Stuart Taylor Jr., Is Judicial Restraint Dead?, N.J. L.J., Aug. 26, 1996, at S-1 (The theme
is that it is becoming ever more clear that not a single member of the current Court can be called
a consistent practitioner of judicial restraint. Each of the equal protection decisions-which
were lauded, in turn, by liberal advocates of gay rights and women's rights, and by conservative
advocates of 'colorblind Constitution' jurisprudence-was an exercise in judicial activism. And
each of the nine justices joined at least one of them.).
3 Eva M. Rodriguez, Confusion from the High Court, CorN. L. TRIB., July 15, 1996, at 9.
4 See Linda Greenhouse, Gavel Rousers: Farewell to the Old Order in the Court, N.Y.
TIMEs, July 2, 1995, § 4 (Week in Review), at 1 (An ascendant bloc of three conservative Jus-
tices with an appetite for fundamental, even radical change drove the Court on a re-examination
of basic Constitutional principles.).
5 Linda Greenhouse, In Supreme Court's Decisions, a Clear Voice, and a Murmur, N.Y.
TIMEs, July 3, 1996, at Al.
January 1998 Vol. 66 No. 2](ViewImageLocal?handle=hein.journals/gwlr66&div=16&collection=&method=preview&ext=.png&size=3)
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Defending the Middle Way: Intermediate Scrutiny as Judicial Minimalism
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