Legislative incentives and two-tiered judicial review: A game theoretic reading of Carolene Products footnote four
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U.S. v. Carolene Products footnote four is "the great and modern charter for ordering the relation between judges and other agencies of government." Under the footnote, the rigor of judicial review is selected in response to whether a statute's enactment reflects or affects "ordinary" majoritarian processes. Often neglected, however, is that the process criterion did not originate with the Fourteenth Amendment concerns of the footnote, but originated in the early tax and commerce jurisprudence of the Supreme Court. Drawing upon the jurisprudence in these precedents, a simple game theoretic model is developed of the footnote's suspect legislative incentive structure. Doing so illuminates several controversies surrounding the footnote's doctrine and application: the majoritarian basis for the Court's countermajoritarian prerogative and the type of "discrete and insular" minority groups that qualify for heightened judicial review. It also corrects the common misconception that the footnote excludes economic regulations from heightened judicial scrutiny.
