Avi Siegal (Yale University – Law School) has posted Covert Constitutional Balancing on SSRN. Here is the abstract:
This Article maps out the context and contours of covert balancing in constitutional cases under today’s Supreme Court. Anti-balancers dominate the Court, as signaled by the ostensible originalist triumph of N.Y. State Rifle & Pistol Ass’n v. Bruen (2022). Recently retired Justice Breyer’s newest book, which praises constitutional balancing, seems like a kind of swan song for this judicial instrument. But rumors of balancing’s death are greatly exaggerated. As the post-Bruen disarray in lower courts and the zigzagging of U.S. v. Rahimi (2024), U.S. v. Hemani (2026), and Wolford v. Lopez (2026) suggest, criticizing balancing is far easier than replacing it. Not only does balancing inhere in the judicial role; balancing is also practically irresistible to judges who control majorities.
By covertly balancing, Justices aim to preserve their Court’s legitimacy by minimizing decisions reached by explicitly weighing competing constitutional interests. Covert balancing techniques appeal to Justices who, for reasons of professional identity and ideological commitment, are reluctant to admit that they are balancing. It is a fiction, but a handy one that will only become more prevalent in the years to come. Justices covertly balance through four main techniques: redefinition, double effect, eliminating the counterweight, and tiers of scrutiny. They also accomplish covert balancing, in a looser sense, when they engage in what this Article calls balancing avoidance. Balancing avoidance involves reassigning the balancer role, “finding” law, or invoking ordered liberty. This Article concludes that, on balance, covert balancing and balancing avoidance do more harm than good. The republican genius does not abide noble lies. The Court should choose candor.
Highly Recommended!
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