The Origin of the Compelling State Interest Test and Strict Scrutiny

Does law exhibit a significant constraint on Supreme Court justices' decisions? Although proponents of the attitudinal model argue that ideology predominantly influences justices' choices, “hybrid models” posit that law and ideology exhibit discrete and concurrent effects on justices' choices. I offer a new conceptualization of legal constraint examining how legal rules permit varying degrees of ideological discretion, which establishes how strongly ideological preferences will influence justices' votes. In examining the levels-of-scrutiny legal doctrine, I posit theoretical models highlighting the differential constraining capacities of the strict scrutiny, intermediate scrutiny, and rational basis rules. I use a multilevel modeling framework to test the hypotheses within the context of theGrayneddoctrine in free expression law. The results show that strict scrutiny, whichGraynedapplied to content-based regulations of expression, significantly constrains ideological voting, whereas intermediate scrutiny (applied to content-neutral regulations) and the low scrutiny categories each promote high levels of ideological voting.

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A Matter of Context: Casey and the Constitutionality of Compelled Physician Speech

The Journal of Law Medicine & Ethics ◽

10.1111/jlme.12194 ◽

2015 ◽

Vol 43 (1) ◽

pp. 35-50 ◽

Cited By ~ 1

Author(s):

Scott W. Gaylord

Keyword(s):

First Amendment ◽

United States Supreme Court ◽

Freedom Of Speech ◽

The United States ◽

State Regulation ◽

United States Supreme ◽

Strict Scrutiny ◽

Legitimate Interest ◽

Single Standard ◽

The Government

The First Amendment states that “Congress shall make no law…abridging the freedom of speech.” Given the myriad ways in which freedom of speech can be implicated, the United States Supreme Court has not adopted a single standard for reviewing First Amendment speech claims. With respect to compelled speech, the Court has instructed that “context” is dispositive. When the government attempts to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein,” the Court applies strict scrutiny. When, however, “the State has a significant role to play in regulating” a particular context, government-compelled disclosures may be subject to a lower standard of review: “When a state regulation implicates First Amendment rights, the court must balance those interests against the State’s legitimate interest in regulating the activity in question.”

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