Balancing

• Author: Jeffrey Lehman, Shirelle Phelps

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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 decision-making methods, the other being categorization 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 findings 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 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

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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...