In my last post, I discussed Justice Clarence Thomas’s criticism of the Supreme Court’s tiers of scrutiny jurisprudence.  Given Thomas’s criticism of the tiers as both made up and inconsistently applied, one might wonder why the Supreme Court follows this approach.  My explanation is one that relies on a public choice theory of the justices.  The Supreme Court follows this approach because it enhances – perhaps maximizes – its power. One might question that the Supreme Court’s power is enhanced by the tiers of scrutiny jurisprudence.  After all, the tiers seem to involve rules of a sort that would arguably limit…

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