BALANCING
A process sometimes used by state and federal courts in deciding between the competing interests represented in a case.
Used frequently to decide constitutional
cases, balancing is one of two main legal deci-
sion-making methods, the other being catego-
rization or STRICT CONSTRUCTION. Balancing
involves weighing competing rights against each
other and analyzing the relative strengths of
many factors. A balancing decision is dependent
upon the circumstances of each case. Therefore,
the outcome is difficult to predict. By contrast,
categorization is a classification and labeling
process. It involves identifying a right and how it
was infringed upon and analogizing these find-
ings to a previously decided case or precedent.
Hence, the outcome is more predictable.
Balancing of Competing Interests in
the U.S. Supreme Court
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 crimi-
nalizing 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. Gar-
ner, 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 enforce-
ment 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 bal-
ance 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, politi-
cal, and economic problems. He said, “[W]het-
her 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., dis-
senting]). In another case, he wrote: “Whether a
law enacted in the exercise of the police power is
justly subject to the charge of being unreason-
able 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 reme-
died and the possible effects of the remedy pro-
posed” (Truax v. Corrigan, 257 U.S. 312, 42 S. Ct.
124, 66 L. Ed. 254 [1921] [Brandeis, J., dissent-
ing]). Similarly, Stone forcefully advocated “con-
sideration 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 pro-
tected individual rights conflict with govern-
mental 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 exam-
ple, 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, 372
U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)
(guaranteeing indigent defendants appointed
counsel in felony cases); and GRISWOLD V. CON-
NECTICUT, 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 func-
tion. They maintain that it is a vague and arbi-
trary method of measuring unequal interests
against each other and that it results in unpre-
dictable decision making. One vocal critic of
balancing is Justice ANTONIN SCALIA. In his dis-
senting 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.”
Balancing of Competing Interests in
Other State and Federal Courts
Although the U.S. Supreme Court generates
close scrutiny of its decisions when it applies a
balancing test to resolve high-profile or controversial
issues before it, it is not the only court
that resolves issues by balancing competing
interests at stake in a legal dispute. Indeed, every
day across the country state and federal courts
are asked to balance the competing interests of
litigants in determining the admissibility of evidence,
the appropriateness of a sentence, or the
viability of an appeal.
For example, state and FEDERAL RULES OF EVIDENCE
call for the exclusion of relevant evidence
when its PROBATIVE value is substantially outweighed
by the danger of unfair prejudice or by
considerations of undue delay, waste of time, or
the needless presentation of cumulative or confusing
evidence. Consequently, before one party
may introduce relevant evidence over another
party’s objection, the judge must balance the
competing interests that would be served by
excluding or admitting the evidence in question.
State and federal sentencing guidelines also
generally require judges to balance the aggravating
and MITIGATING CIRCUMSTANCES underlying
a criminal offense before imposing a
particular sentence on a defendant. Aggravating
factors are those factors that justify a more
severe punishment and are typically introduced
by the prosecution, victim, or victim’s family.
Mitigating factors are those factors that justify a
less severe sentence and are typically introduced
by the defendant, the defendant’s attorney, or
witnesses speaking on behalf of the defendant.
Finally, appellate courts often engage in
some form of balancing to review the lawfulness
of a lower court decision. In addition, to the above examples from the U.S. Supreme Court,
appellate courts employ a variety of standards of
review by which they evaluate the record for
error using some form of balancing analysis. For
example, the substantial evidence standard of
review requires appellate courts to determine if
a lower court’s decision was supported by sufficient
evidence to avoid being overturned, meaning
that the appellate court must weigh the
evidence offered by the parties to some extent.
Appellate courts applying the arbitrary and
capricious standard of review must not only
examine the gravity of the alleged arbitrary or
capricious conduct in the lower court, but they
must also take into consideration any evidence
that makes the lower court’s decision reasonable
or justifiable.
FURTHER READINGS
Alexy, Robert. 2003. “Constitutional rights, balancing, and
rationality.” Ratio Juris 16 (June): 131-140.
Columbia Law Review. 1978. 78:1022.
Friendly, Fred W. 1984. The Constitution: That Delicate Balance.
New York: Random House.
Gottlieb, Stephen E., ed. 1993. Public Values in Constitutional
Law. Ann Arbor,Mich.: Univ. of Michigan Press.
Hastings Law Journal. 1994. 45 (April): 711, 835, 969.
Yale Law Journal. 1987. 96 (April): 943.
CROSS-REFERENCES
Child Pornography; Deadly Force; Fourth Amendment;
Judicial Review; Jurisprudence; Police Power; Precedent;
Probable Cause; Strict Construction.
