Does strict judicial scrutiny involve thetu quoque fallacy?

Abstract

To protect what it deems “fundamental rights,” the Supreme Court “strictly scrutinizes” legislation that impinges on these rights. The Court views such legislation as a means to some end the legislation seeks to accomplish. The Court requires that the statute be neither “overinclusive” nor “underinclusive”; the legislation may not affect more people than necessary to achieve its end, nor is the statute permitted to leave some people out in achieving its end.

I argue that when legislation imposes burdens, its underinclusiveness is irrelevant, and that when it dispenses rewards its overinclusiveness is irrelevant, because those affected by the statute areex hypothesi deserving. One commits thetu quoque fallacy when one tries to infer that those affected by the law are undeserving from the fact that some deserving individuals were not affected by the statute.

I show concretely how the Court has erred in specific cases. I also point out how the doctrine of judicial review prevents the Court from availing itself of the remedy that logic would demand.

Lastly, I consider the possibility that the Court uses the doctrine of strict scrutiny to strike down legislation that the Court suspects has an impermissible motive. I conclude that if the Court has evidence of an impermissible motive, it could present an inductive argument for such a motive and strike the legislation down for that reason. Using thetu quoque fallacy does not advance the search for the impermissible motive.