The framework of means-end scrutiny – where a court evaluates the constitutionality of a law by assessing whether it is sufficiently tailored and justified – has played a foundational role in constitutional law since the mid 20th century. Through several recent rulings, the Roberts Supreme Court has signaled a shift toward new modes of analysis.
In a forthcoming Duke Law Journal article titled “The End of Means-End Scrutiny,” Vanderbilt Law Professor Francesca Procaccini argues that the move has a “profound and troubling impact” on constitutional rights and whom they protect.
She contends that the net effect of this shift “disconnects rights from social context, popular input, and political interest-balancing,” weakening federal authority and benefiting private power and dominant political, economic, and social groups. “Conspicuously,” she writes, “these changes uniformly produce ideologically conservative outcomes.”
Means-end scrutiny initially appeared in the late 1930s and grew in prevalence through the 60s, 70s, and 80s, to the point where it “had become synonymous with constitutional scrutiny,” Procaccini writes. The paper tracks how the Roberts Court has steadily employed three new modes of constitutional analysis, reserving means-end scrutiny for a “few scattered pockets of constitutional law.”
She begins by detailing the Court’s use of a “History and Tradition Rule” in lieu of means-end scrutiny in cases involving the right to bear arms (first referenced in Bruen), freedom from establishment of religion (Kennedy v. Bremerton School District), right to a Civil Jury Trial (Jarkesy), and right to a criminal jury (Ramos).
Procaccini goes on to chart the Court’s steady adoption of a new “strict equality” rule to govern First and Fourteenth Amendment rights, including the freedom of speech, free exercise of religion, equal protection, substantive due process, and the right to travel. She argues that while “equality has been a founding organizing principle” for these rights, working in tandem with means-end scrutiny, the Court now uses it as a categorical rule.
The paper also spotlights the replacement of means-end scrutiny with rights-specific rules in redefining the scope of the freedom against being compelled to speak, as well as social and economic liberty interests.
Lastly, Procaccini identifies areas where the Court has retained means-end scrutiny, specifically regarding rights that limit governments’ law enforcement capabilities and rights designed to protect politically powerless groups.
Procaccini cautions that the quietness of this doctrinal revolution compounds its democratic consequences. “Astonishingly, the Court has accomplished this coup without much of a bang. Rather, it has steered the petering out of means-end scrutiny with little dissenting or scholarly commotion. The move is thus doubly undemocratic.”
By unmasking this shift, Procaccini aims to bring transparency to what she describes as a foundational change in constitutional law, inviting renewed debate about the proper role of courts, rights, and democratic governance in shaping the nation’s constitutional order.
“The Ends of Means-End Scrutiny” is forthcoming in Duke Law Journal. Francesca Procaccini is an Associate Professor of Law at Vanderbilt Law School.
