미국 연방대법원 사법심사기준으로서 입법관련 자료에 대한 신뢰성 판단

초록

Since the 1960s, the U.S. Supreme Court(SCOTUS) has made unconstitutional decisions based on strict scrutiny in Equal Protection cases, in which racial classification matters. However, there are some cases where a decision on constitutionality is made while applying the strict scrutiny. When the SCOTUS applied not only strict scrutiny but also adequacy-checking to the record of the agency or the Congress, the law was upheld. The test manner on the record can be divided two, adequacy-checking is a modest verifying legislative data submitted by Congress, credibility-test is strictly judging for confidence in government data from a skeptical view point. Even if the SCOTUS apply the strict scrutiny, the law can be upheld through the adequacy-checking test on the record supporting legislation. The conservative Justices who made the unconstitutional decision in Shelby County and the liberal Justices who made the unconstitutional decision in Windsor seem to be equally skeptical to the record submitted by Congress. However it is different, under what conditions, it is more important and persuasive, SCOTUS can apply credibility test on the record supporting legislation. Considering the role of the legislative, the executive and the judiciary under the principle of separation of powers, the court can apply the adequacy-checking to the record of the legislative under the strict scrutiny. If there is a serious restriction on the fundamental rights, the court can credibility-test to the record under the rational basis test. For the Constitutional Court of Korea the credibility and the adequacy method will be helpful to establish more persuasive and reasonable standard for the judicial review.

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