Balancing

Balancing may take one of two forms in cases before the U.S. Supreme Court. In the first, the Court may measure competing interests against each other and determine which carries the most weight. For example, in New York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982), the Court upheld a statute criminalizing distribution of CHILD PORNOGRAPHY because the evil eliminated by the statute far outweighed any infringement on free speech interests. In the second form of balancing, the Court attempts to "strike a balance" between competing interests. Thus, in Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985), the Court held that a police officer may use DEADLY FORCE to stop a fleeing felon if the officer has PROBABLE CAUSE to believe that the suspect poses a threat of serious physical harm to others. In Garner, the Court did not find that one interest clearly outweighed the other. Instead, both the state's interest in law enforcement and the individual's interest in being free from harm were weighed in the analysis and given due recognition.

Balancing was first used by the U.S. Supreme Court as one of its principal modes of judicial analysis in the late 1930s and early 1940s when the judiciary began to reject the rigid formalism and mechanical JURISPRUDENCE characteristic of the nineteenth and early twentieth centuries. Before the balancing era began in earnest with LOCHNER V. NEW YORK, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), the Court held that a New York statute setting maximum work hours was constitutional because such regulation was within the state's POLICE POWER. In reaching this decision, the Court did not attempt to balance the rights of the individuals against the state's interests, but it took a straightforward look at the language of the statute and found it valid. This earlier Court stated: "The purpose of a statute must be determined from the natural and legal effect of the language employed… . It seems to us that the real object and purpose [of the statute] were simply to regulate the hours of labor between the master and his employees."

Early proponents of balancing included such prominent Supreme Court justices as OLIVER WENDELL HOLMES JR., LOUIS D. BRANDEIS, and HARLAN F. STONE, all of whom sat on the Court in the early to middle 1900s. Holmes, sometimes called the patron saint of the anti-formalist movement, was one of the first to espouse the idea that the law is and should be an evolving product of social experience. He assailed the notion that rigid formulas could be applied to all situations before the Court. "[T]he law is a logical development, like everything else," he wrote. In a similar vein, Brandeis criticized the Court for ignoring contemporary social, political, and economic problems. He said, "[W]hether a measure relating to the public welfare is ARBITRARY or unreasonable … should be based upon a consideration of relevant facts, actual or possible" (Adams v. Tanner, 244 U.S. 590, 37 S. Ct. 662, 61 L. Ed. 1336 [1917] [Brandeis, J., dissenting]). In another case, he wrote: "Whether a law enacted in the exercise of the police power is justly subject to the charge of being unreasonable or arbitrary can ordinarily be determined only by a consideration of the contemporary conditions, social, industrial, and political, of the community to be affected thereby. Resort to such facts is necessary, among other things, in order to appreciate the evils sought to be remedied and the possible effects of the remedy proposed" (Truax v. Corrigan, 257 U.S. 312, 42 S. Ct. 124, 66 L. Ed. 254 [1921] [Brandeis, J., dissenting]). Similarly, Stone forcefully advocated "consideration of all the facts and circumstances" in a case, including societal conditions that affected the parties, the controversy, and the outcome (DiSanto v. Pennsylvania, 273 U.S. 34, 47 S. Ct. 267, 71 L. Ed. 524 [1927] [Stone, J., dissenting]).

The Court uses a balancing approach most often to decide cases where constitutionally protected individual rights conflict with governmental interests. Many of the landmark constitutional cases of the 1960s, 1970s, and 1980s were decided in this manner, including ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 47 (1973), which legalized ABORTION. In reaching its decision in Roe, the Court found that in the first trimester of pregnancy, a woman's right to privacy outweighed the state's interest in protecting health, but in the later stages of pregnancy, the state's interest gradually outweighed the woman's.

Contrary to popular belief, however, the Court has not used balancing as its primary method of deciding constitutional cases. In fact, some of the most important constitutional cases of the twentieth century were decided without any balancing of competing interests. For example, balancing was not used to decide BROWN V. BOARD OF EDUCATION, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954) (outlawing segregated public schools); GIDEON V. WAINWRIGHT, 372U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) (guaranteeing indigent defendants appointed counsel in felony cases); and GRISWOLD V. CONNECTICUT, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965) (outlawing state laws prohibiting contraceptives).

Balancing has always aroused controversy among legal scholars and judges. Critics contend that it gives too much discretion to judges and amounts to a usurpation of the legislative function. They maintain that it is a vague and arbitrary method of measuring unequal interests against each other and that it results in unpredictable decision making. One vocal critic of balancing is Justice ANTONIN SCALIA. In his dissenting opinion in Bendix Autolite Corp. v. Midwesco Enterprises, 486 U.S. 888, 108 S. Ct. 2218, 100 L. Ed. 2d 896 (1988), he characterized the balancing of competing interests as an illusion. "[T]he scale analogy is not really appropriate," he wrote, "since the interests on both sides are incommensurate. It is more like judging whether a particular line is longer than a particular rock is heavy."

Scalia's frontal attack on balancing gained force in the 1990s when Scalia was joined on the Court by other justices who shared his philosophy that the Constitution should be construed strictly and literally. Evidence that Scalia's view was held by others on the Court can be found in the 1995 decision Vernonia School District 47J v. Acton, 515 U.S.646, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (U.S. 1995), which held that schools could legally perform random drug tests on student athletes. The decision employed a straightforward analysis of the rationality of the school's policy to conduct random drug tests and dismissed concerns about infringement of the students' FOURTH AMENDMENT right to be free from unreasonable searches. Writing for the majority, Scalia stated: "The most significant element in this case is … that the policy was undertaken in furtherance of the government's responsibilities, under a public school system, as guardian and tutor of children entrusted to its care." The Court held that the testing was a type of search that "a reasonable guardian and tutor might undertake."

Three justices disagreed vehemently. Writing for the dissent, Justice SANDRA DAY O'CONNOR emphasized her belief that the decision did not give due recognition to the students' constitutional rights and went too far in its broad approval of "intrusive, blanket searches of school children, most of whom are innocent, for evidence of serious wrongdoing." Under the ruling, she said, students no longer enjoyed "the Fourth Amendment's … most basic … protection: its strong preference for an individualized suspicion requirement."

Justice O'Connor's dissent in Acton echoed her strong approval of balancing competing interests and assessing a statute's intrusion on individual rights. O'Connor expressed her belief that balancing is an essential step in the Court's decision-making process, in Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). The respondents in Smith were Native Americans who were fired from their jobs because they ingested peyote as part of a religious ceremony. The Court held that the state could deny them unemployment benefits without violating the Free Exercise Clause of the FIRST AMENDMENT. O'Connor concurred with the result but took issue with the majority's failure to consider the effect the disputed statute had on the free exercise of religion. "To me," O'Connor wrote, "the sounder approach—the approach more consistent with our role as judges to decide each case on its individual merits—is to apply [a] test in each case to determine whether the burden on the specific plaintiffs before us is constitutionally significant and whether the particular … interest asserted by the State before us is compelling."