What was Carolene Products Footnote Four?

0:03In some ways you can trace this idea of strict scrutiny actually a little bit earlier than 1940s to the 1938 Carolene Products case. In the late 1930s, the Court was really undergoing a shift in the so-called Lochner Era in the first decades of the 20th century. The Court had been incredibly aggressive in policing and often striking down laws passed by legislatures, in particular laws that did things like impose minimum wage or maximum hour or workplace conditions requirements. The court was concerned that those kinds of laws passed by legislatures interfered with economic liberty. The Court struck down hundreds of these laws in those decades. But by the late 1930s, the Court had essentially shifted course and retreated from this very aggressive intervention in second guessing the handiwork of legislatures. The Carolene Products opinion marks a really important moment in that shift.

1:03That opinion, the law involved, is one that had to do with the purity of milk. What the Court basically says is, for the most part, when we're talking about ordinary laws, including things like the regulations of milk purity, courts should very deferentially review the output of legislatures, the individual selected by the population to represent them and to enact their wills into law.

1:27That's really for elected representatives, essentially, to run the show, and courts should be very deferential and should be very hesitant to strike down the output of the Democratic process. But says the Court, and this is where strict scrutiny or some version of strict scrutiny comes in, there are a couple of important exceptions to that general principle that most laws should be reviewed using something called rational basis review.

1:50So long as there's some rational reason on which the legislature might have acted, the law should be upheld. But the important exceptions to that background principle come into play when a law, one, violates a fundamental right, two, discriminates against what the opinion describes as a discrete and insular minority, or discriminates on the basis of protected characteristics like race and religion, or three, when a law interferes with or undermines the functioning of the political process.

2:23All of that reasoning is contained in this very famous footnote four, probably the most famous footnote in constitutional law. It basically sets out different types of review that court should give to different types of legislation, ordinary legislation, rational basis review, something more searching comes to be known as either heightened or strict scrutiny depending on the specific context. If we're talking about laws that burden fundamental rights or discriminate on the basis of protected characteristics or interfere with the political process.

2:52In the 1940s, in cases like Skinner v. Oklahoma and Korematsu, the Court uses for the first time, this phrase strict scrutiny, basically, to explain that under some circumstances where a law draws a distinction, where it either burdens a fundamental right or draws a distinction on an impermissible basis, that law is subject to strict scrutiny. What that means is the law can only be upheld if it is narrowly tailored to or sometimes necessary to advance a compelling government interest. The reason that the government passed the law has to be a really good reason, and the mechanism that it has chosen has to be narrowly tailored to advance that goal or purpose. Strict scrutiny means that for the most part, courts are going to be very skeptical and laws will be struck down, not invariably, but much of the time, whereas that's basically flipped in rational basis review.

3:49For the most part, laws receiving rational basis review will be upheld.