Strict scrutiny

“ But, sir, if you desire to set this Republic right before the world, there is but one course that remains to you. Show by a conscientious and searching inquiry that the Government of the United States has done nothing deserving of censure; or, if the investigation does prove that duty and law have been violated, then show yourself fair and honest enough to disavow frankly by the legislative branch of the Government the mischief wrought by executive officers. There is no other alternative. ”

“ The keen, severe, and even malevolent scrutiny to which his whole public life was subjected, a scrutiny unparalleled, as we believe, in the history of mankind, is in one respect advantageous to his reputation. ”

“ Allow facts, injurious to the judge, to be published, even when true; allow comments, unfavourable to the judge, to be made upon his actions, you discredit the administration of justice. Discredit the administration of justice, to which the people are resorting every day for the greatest of all possible benefits, protection from injury! ”

“ Every doubt will be resolved against him. Where confidential relations and the means of oppression exist, the scrutiny is severer than in cases of a different character. The form of the instruments employed is immaterial. ”

“ First, heightened scrutiny is said to be inapplicable where individuals in a group have distinguishing characteristics that legislatures properly may take into account in some circumstances. Ante, at 441-442. Heightened scrutiny is also purportedly inappropriate when many legislative classifications affecting the group are likely to be valid. We must, so the Court says, "look to the likelihood that governmental action premised on a particular classification is valid as a general matter, not merely to the specifics of the case before us," in deciding whether to apply heightened scrutiny. ”

“ If the vigilance of those who are intrusted with the chief direction of great numbers of subordinate officers be such, that corrupt practices are not frequent, and their justice such, that they are never unpunished when legally detected, the most strict inquirer can expect no more. Power will sometimes be abused, and punishment sometimes be escaped.
It is, sir, easy to be conceived that a report may become general, though the practice be very rare. ”

“ Caution is appropriate against the subtle tendency to decide public issues free from the safeguards of critical scrutiny of the facts, through use of a declaratory summary judgment. Modern equity practice has tended away from a procedure based on affidavits and interrogatories, because of its proven insufficiencies. ”

“ What do you have to lose by having a thorough investigation to determine the validity of these votes?
Why not encourage an investigation to relieve the concerns of half of the people in this country? ”

“ The tribunal of public opinion, open to all, scattered its decrees with a reckless cruelty—denying to-day what it had decreed but yesterday, and at last obliterating every trace of ‘right’ or ‘principle’ in a people who now only lived for the passing hour, and who had no faith in the future, even of this world. ”

“ Unbending resistance to answering, one way or the other, a legislative committee's limited inquiries in the face of already public information to the same effect reduces the association's interest in secrecy to sterile doctrine. ”

“ It is not well to assume these allegations to be true without the fullest investigation and inquiry by the legislative power, for, if true, the gravest questions of public policy arise that we have been called upon to consider since the close of the Civil War. ”

“ I fully appreciate the delicacy of the judicial task of questioning the workings of a legislative investigation. A proper regard for the primacy of the legislative function in its own field, and for the broad scope of the investigatory power to achieve legislative ends, necessarily should constrain the judiciary to indulge every reasonable intendment in favor of the validity of legislative inquiry. ”

“ Let us first consider the nature of the tribunal.
The supreme constituted authority—not only of affairs in this life but in the ordering of all the future existences that man has conceived—is Public Opinion. Public opinion is the decree of human nature determined in impenetrable secrecy, enforced with ceremonious and bewildering circumlocution. It is thus double-natured. The organized public opinion that we see, hear, feel and obey is the costumed officialism of human nature, through ages of custom charged with enforcing upon individuals the demands of the many. ”

“ Certainly, the nature of our society has not vitiated the need for inspections first thought necessary 158 years ago, nor has experience revealed any abuse or inroad on freedom in meeting this need by means that history and dominant public opinion have sanctioned. ”

“ We have the duty not only to review cases and point out error, but also to provide guidance. We cannot ask others to respect the integrity of our decisions when we ourselves do not; but instead evade the reasoning of a prior panel in the same case. ”

“ They do in fact keep inquiries within reasonable limits, which, in courts not guarded by such rules, are apt to ramble step by step into remoter or less relevant topics, and often end by accumulating unmanageable masses of useless and irritating scandals. ”

“ An inquiry is wished, as the most effectual way of putting an end to the clamors and libels which are the disorder and disgrace of the times. For people remain quiet, they sleep secure, when they imagine that the vigilant eye of a censorial magistrate watches over all the proceedings of judicature, and that the sacred fire of an eternal constitutional jealousy, which, is the guardian of liberty, law, and justice, is alive night and day, and burning in this House. ”

“ XL. Let us now consider, that the falsehoods and deceits, with which tribunals are environed, make the investigation of truth so difficult, that in some causes it is come at late, and in others never. This is a most pernicious injury to the public, for the tediousness and difficulty of the verification, gives breathing-time for the ill intentioned, to devise and concert all sorts of wickedness. What remedy then can you apply to this evil, but that of punishing rigorously every kind of judicial deceit? ”

“ It may be true that a ministerial officer, in a secret and private investigation, may strive to ascertain the truth and to do justice, but unless we blind our eyes to the history of the long struggle in the mother country to secure protection to the liberty of the citizen, we must realize that a public investigation before a judicial tribunal, with the assistance of counsel and the privilege of cross-examination, is the best, if not the only, way to secure that result. ”

“ A SELF-EVIDENT FACT No government subordinate or bureau chief ever got into difficulty except when he did something. No one ever knew a refusal to act, or a 153 delay in acting, to be the subject of judicial or legislative investigation. Pigeonholes all filled is infinitely safer than a few signed documents. ”

“ Nothing is more essential to a well-ordered civil government, than a well-balanced public mind; for want of this, in different ages, laws have been framed and penalties executed in cases which go beyond the reach of human investigation, and relate to subjects of which we can form only faint and obscure conceptions, and consequently all the evidence touching such cases is more or less to be distrusted. ”

“ The whole which we gain therefore from the Board of Inquiry is—that what we barely suspected is ripened into certainty—and that on all, which we assuredly knew and declared without needing that any tribunal should lend us its sanction, no effort has been made at denial, or disguise, or palliation. ”

“ If the authorities attempt to elicit the facts by a course of examination, they only obtain subterfuges and prevarications, and seek in vain by threats or promises to shake the constancy of the witnesses. ”

“ But should any one who is summoned before the tribunal of this Public Opinion dare to despise its authority, then total perplexity takes possession of the minds of its representatives, and to the end of their lives they gaze in profound astonishment at the man who has had courage sufficient to scorn their jurisdiction. ”

“ In Parliament, how is a question of science treated? In our courts of law, and criminal investigation, it is lamentable to observe the frequent defeat of justice, arising from erroneous conception, or from the utter absence of the requisite knowledge. In the ordinary affairs of life, we see conspicuous, amongst the dupes of quackery and imposture, those whose stations should imply the best instruction, and whose conduct, unfortunately, has the effect of example. ”

“ This problem is important not only to an individual or some isolated group or to individual litigants in a particular lawsuit, but affects the entire Nation. When the grand jury is performing its investigatory function into a general problem area, without specific regard to indicating a particular individual, society's interest is best served by a thorough and extensive investigation, and a greater degree of disinterestedness and impartiality is assured by allowing free expenssion of contrary opinion. ”

“ Of course, the considerations entering into the weighing of the interests concerned are different where the problem is one of state exposure in the area of assembly and expression from where the problem is that of evaluating a state criminal or regulatory statute in these areas. Government must have freedom to make an appropriate investigation where there appears a rational connection with the lawmaking process, the processes of adjudication, or other essential governmental functions. ”

“ The requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process. ”

“ So the judiciary, by its mode of appointment, long duration in office, and slight accountability, is rather fitted to check legislative power than political, and enforce what the political authorities have manifestly ordained. ”

“ When the State or Federal Government is prohibited from dealing with a subject, it has no constitutional privilege to investigate it. An investigation to permit a legislature properly to perform its powers of internal management is of course allowed. ”

“ If there be, as the Westminster Reviewer acknowledges, certain checks which, under political institutions the most arbitrary in seeming, sometimes produce good government, and almost always place some restraint on the rapacity and cruelty of the powerful, surely the knowledge of those checks, of their nature, and of their effect, must be a most important part of the science of government. ”

“ Enquiries that were to be regulated, not by a spirit of justice but by the disputatious temper of men whose trade it was to deceive, and by statutes and precedents which they might or might not remember, and which, though they might equivocally and partially apply in some points, in others had no resemblance, such enquiries ought not lightly to be instituted. Neither ought the habitual vices which they engender, both in lawyer and client, nor the miseries they inflict, upon the latter in particular, and by their consequences upon all society, to be promoted. ”

“ In short, the Court's holding and opinion break down barriers that have heretofore stood in the way of secret and arbitrary governmental action directed against persons suspected of crime or political unorthodoxy. ”

“ To allow a document which was placed in the files of the Government at the instance of a high officer of State to be attacked and discredited because of the doubts and suspicions of individuals, no matter how eminent and intelligent, would be a monstrous abuse of authority which can not be upheld in either law or morals. ”

“ To view the problem of fairness and evenhanded decisionmaking, in the present context, as merely a commonplace chore of weeding out 'spurious claims,' is to minimize substantial difficulties of real concern to a responsible legislative body. ”

“ We spoke there in a context where men were being deprived of their jobs as a result of investigations into their loyalty. Certainly no less is required if hearings are to be held on charges that a person has violated a federal law. ”

“ He therefore who unjustly exposes the courts of judicature to suspicion either of partiality or error, not only does an injury to those who dispence the laws, but diminishes the public confidence in the laws themselves, and shakes the foundation of public tranquility. ”

“ But these men, instead of endeavouring to promote justice and discover truth, have exerted their wits in the defence of bad causes, by forgeries of facts, and fallacies of argument.
"To remedy this evil, the king has ordered an inquiry into the qualifications of the advocate. All those who practise without a regular admission, or who can be convicted of disingenuous practice, are discarded. And the judges are commanded to examine which of the causes now depending have been protracted by the crimes and ignorance of the advocates, and to dismiss those who shall appear culpable. ”

“ If it is not done at this time, the evils will increase, and every year add to our difficulties. Even now, from the various decisions or neglects, alterations, or amendments which have here ofore taken place, some time an investigation may be necessary in the arrangement of a system which shall combine justice with convenience. ”

“ It is a fact, of which I have the best evidence in my hands, that of the things which have startled the country, not a few have actually been brought out by those voluntary private agencies which you seem to consider unnecessary and valueless. Without those agencies the members of the Senate Investigating Committee, who really want to investigate, would have groped about in the dark, and those members will declare to you to-day that the services thus rendered are “inestimable.” The President in pursuit of the real truth may have occasion to say the same thing. ”