Strict scrutiny is the most stringent standard of judicial review used by United States courts.
It is part of the hierarchy of standards that courts use to weigh the government's interest
against a constitutional right or principle.
The lesser standards are rational basis review and exacting or intermediate scrutiny.
These standards are used to test statutes and government action at all levels of government
within the United States.
The notion of "levels of judicial scrutiny", including strict scrutiny, was introduced
in Footnote 4 of the U.S. Supreme Court decision in United States v. Carolene Products Co.,
one of a series of decisions testing the constitutionality of New Deal legislation.
The first and most notable case in which the Supreme Court applied the strict scrutiny
standard and found the government's actions valid was Korematsu v. United States, in which
the Court upheld the exclusion of Japanese Americans from designated areas during World
War II.
Applicability U.S. courts apply the strict scrutiny standard
in two contexts: when a fundamental constitutional right is infringed, particularly those found
in the Bill of Rights and those the court has deemed a fundamental right protected by
the Due Process Clause or "liberty clause" of the 14th Amendment, or when a government
action applies to a "suspect classification" such as race or, sometimes, national origin.
To pass strict scrutiny, the law or policy must satisfy three tests:
It must be justified by a compelling governmental interest.
While the Courts have never brightly defined how to determine if an interest is compelling,
the concept generally refers to something necessary or crucial, as opposed to something
merely preferred.
Examples include national security, preserving the lives of multiple individuals, and not
violating explicit constitutional protections.
The law or policy must be narrowly tailored to achieve that goal or interest.
If the government action encompasses too much or fails to address essential aspects of the
compelling interest, then the rule is not considered narrowly tailored.
The law or policy must be the least restrictive means for achieving that interest, that is,
there cannot be a less restrictive way to effectively achieve the compelling government
interest.
The test will be met even if there is another method that is equally the least restrictive.
Some legal scholars consider this "least restrictive means" requirement part of being narrowly
tailored, though the Court generally evaluates it separately.
Legal scholars, including judges and professors, often say that strict scrutiny is "strict
in theory, fatal in fact," because popular perception is that most laws subjected to
this standard are struck down.
However, an empirical study of strict scrutiny decisions in the federal courts found that
laws survive strict scrutiny more than 30% of the time.
In one area of law, religious liberty, laws that burden religious liberty survived strict
scrutiny review in nearly 60% of cases.
However, a discrepancy was found in the type of religious liberty claim, with most claims
for exemption from law failing and no allegedly discriminatory laws surviving.
The compelling state interest test is distinguishable from the rational basis test, which involves
claims that do not involve a suspect class and involve a liberty interest rather than
a fundamental right.
It is also important to note that, unlike the rational basis test, the burden of proof
falls on the state in cases requiring either strict scrutiny or intermediate scrutiny.
Suspect classification
The Supreme Court has established standards for determining whether a statute or policy's
classification requires the use of strict scrutiny.
The class must have experienced a history of discrimination, must be definable as a
group based on "obvious, immutable, or distinguishing characteristics," be a minority or "politically
powerless," and its characteristics must have little relationship to the government's policy
aims or the ability of the group's members to contribute to society.
The Court has consistently found that classifications based on race, national origin, and alienage
require strict scrutiny review.
The Supreme Court held that all race-based classifications must be subjected to strict
scrutiny in Adarand Constructors v. Peña, 515 U.S. 200, overruling Metro Broadcasting,
Inc. v. FCC, 497 U.S. 547, which had briefly allowed the use of intermediate scrutiny to
analyze the Equal Protection implications of race-based classifications in the narrow
category of affirmative-action programs established by the federal government in the broadcasting
field.
De jure versus de facto discrimination As applied in Korematsu v. United States,
which upheld the race-based exclusion order and internment during World War II of Japanese
Americans who had resided on the West Coast of the United States, strict scrutiny was
limited to instances of de jure discrimination, where a racial classification is written into
the language of a statute.
The Supreme Court's decision in Village of Arlington Heights v. Metropolitan Housing
Development Corp. provided further definition to the concept of intent and clarified three
particular areas in which intent becomes apparent, the presence of any of which demands the harsher
equal protection test.
The Court must use strict scrutiny if one of these tests is met:
the impact is so "stark and dramatic" as to be unexplainable on non-racial grounds, as
in Yick Wo v. Hopkins the historical background suggests intent
the legislative and administrative records show intent
Notable cases Skinner v. State of Oklahoma, ex.
rel.
Williamson, 316 U.S. 535, cf.
Buck v. Bell 274 U.S. 200 Sherbert v. Verner, 374 U.S. 398
Wisconsin v. Yoder, 406 U.S. 205 Employment Division v. Smith, 494 U.S. 872
City of Boerne v. Flores, 521 U.S. 507 Gonzales v. O Centro Espirita Beneficente
Uniao do Vegetal, 546 U.S. 418 See also
Intermediate scrutiny Rational Basis Test
Fundamental right Suspect class
Equal Protection Constitutional Law
References