This Article examines the United States Supreme Court’s practice in First Amendment cases of not resolving the precise level of scrutiny that applies to measure a statute’s validity. Rather than opting for one of two tiers of scrutiny — one more rigorous than the other—the Court sometimes dodges the issue. It does this by concluding that a statute would not pass muster under the more lenient standard, thereby rendering it unnecessary to decide which test was, in fact, more appropriate. The Court thus adopts an “assuming-without-deciding” logic in such cases, simply supposing the lesser standard applies without definitively holding as much. In turn, when lower courts confront uncertainty regarding the correct level of scrutiny, they too sometimes avoid picking one standard of review by embracing this “it wouldn’t make any difference anyway” brand of reasoning. This Article addresses why the Supreme Court engages in this practice. Additionally, it considers how this variety of procedural minimalism, which it dubs scrutiny-determination avoidance, affects doctrinal development of the pivotal division between content-based and content-neutral laws. First Amendment scrutiny selection hinges largely on that distinction. Furthermore, this Article analyzes what the implementation of this minimalistic tack may indicate about the practical differences between the strict and intermediate scrutiny standards in their real-world application.
Clay Calvert, Scrutiny-Determination Avoidance in First Amendment Cases: Laudable Minimalism or Condemnable Evasion?, 22 Nev. L.J. 1 (2021)