Strict Scrutiny

The term strict scrutiny refers to a level of study or analysis the courts use to determine the constitutionality of a law, or of the actions of a governmental body. The most rigid standard of judicial review, strict scrutiny is used to determine whether such an action or legislation violates constitutional rights. To explore this concept, consider the following strict scrutiny definition.

Definition of Strict Scrutiny


  1. A standard of judicial review that requires the government prove that the means chosen to achieve a compelling governmental objective is narrowed designed to avoid violation of the right to equal protection under the laws.


1953-1968      U.S. Supreme Court, under Chief Justice Earl Warren

History of Strict Scrutiny

Prior to the Supreme Court era known as “the Warren Court,” the Due Process Clause was used with a broad stroke to strike down state laws seen to violate due process rights. This procedure gave little to no consideration to whether the law or governmental policy discriminated based on classifications of race or national origin. During this period, a “rational basis test” was used to determine whether legislation or policies were valid. No consideration was given to whether the goal or purpose of the law or policy was itself legitimate.

Chief Justice Warren recognized a need to formulate a different standard for evaluation of certain critical matters brought before the Supreme Court. The first two concepts targeted for examination included the issue of “suspect classifications,” and a clearer definition of “fundamental rights.” The standard of strict scrutiny was the resulting change to evaluation of laws and policy under the Equal Protection Clause.

This exacting level of review is only used to evaluate purposes that appear to be offensively prejudicial or discriminatory, for the purpose of bringing the issue to light, and to ensure equal rights under the law. For strict scrutiny to be applied, a legislative body must have either violated a fundamental right through enactment of a law, or passed a law involving a suspect classification, including not only race and national origin, but also poverty, religion, and alien citizenship status.

Levels of Scrutiny

There are basically three levels of scrutiny, or evaluation, that may be applied by the court to determine whether a legislative action or governmental policy is valid, and whether it unnecessarily violates the civil rights of a group of people. All levels of scrutiny under Equal Protection refer to suspect classifications for race, national origin, poverty, religion, and alien citizenship status.

Rational Basis Review

Also known as “minimum scrutiny,” the rational basis review is the most forgiving level of scrutiny. To meet this level of analysis, a challenger need only prove that the means employed by the governmental body are not rationally related to a legitimate government interest.

  • Minimum Scrutiny under Equal Protection – is the use of a classification rationally related to a legitimate governmental objective?
  • Minimum Scrutiny under Due Process – are the means employed rationally related to a legitimate governmental objective?

Example of Rational Basis Standard

North state has more than its fair share of old, unsafe vehicles travelling its roadways. These vehicles have caused a significant smog problem in many areas, and vehicle accidents caused by mechanical failures has risen dramatically in the last 10 years.

The state legislature passed a law requiring all vehicles to pass a safety test, as well as an emissions test, prior to registration. The law grandfathers in vehicles manufactured prior to 1990, but only until January 1, five years from the date the law was enacted. Additionally, if those older vehicles are sold to a new owner, they do not meet the requirements for grandfathering in, and must submit to the testing.

Many citizens of the state are angry about the additional expense and hassle required to obtain these tests, and to make repairs to their vehicles, and have attempted to challenge the law. A governmental body, such as the state legislature, is not required to actually state a reason for the new law, however, it is clear that this legislation is made for a legitimate government interest in protecting the people.

Intermediate Scrutiny

Intermediate scrutiny requires the governmental body to prove its actions are necessary to further an important government interest, and that the means chosen to achieve that interest are narrowly tailored. Narrow tailoring is not a requirement to use the least restrictive of all means available, but that the means are a close fit to the objective.

  • Intermediate Scrutiny under Equal Protection – is the use of a classification substantially related to accomplishing an important governmental interest? This standard does not require that the classification be absolutely necessary to accomplishing the objective.
  • Intermediate Scrutiny under Due Process – are the means employed substantially related to the accomplishment of an important governmental interest? The term “narrowly tailored” is commonly used in place of “substantially related.”

Example of Intermediate Scrutiny Standard

South state has a law allowing the mother of a newborn baby to put the child up for adoption without obtaining the biological father’s permission if the father has not made an official claim to paternity within the first 10 days after the child’s birth.

While the mother of Robert’s baby did inform him of the pregnancy, he had not been in contact with her since, and his name does not appear on the baby’s birth certificate. Two months after the child was born, Robert attempted to get involved in his life, and discovered the mother had allowed the baby to be adopted without his permission.

Robert takes his matter to the court, challenging the state’s law as not meeting the burden of intermediate scrutiny, in that the law is not substantially related to an important government objective, and that the 10-day time period is arbitrary, and not necessary to meet the state’s goal. In addition, he argues that the law discriminates against the fathers in such important matters.

Although the government argues that the goal of the law is to reduce the number of people on welfare and other state aid, while providing caring families for the babies, and allowing the mothers to continue with their educational or work goals. The court rules that, in this case, the 10-day period appears arbitrary, and is not substantially related to that important government objective.

Strict Scrutiny

Strict scrutiny requires the government to employ the least restrictive means to achieve its compelling government objective. The government must prove that its objective is compelling, or undeniably necessary, and that no similarly effective, but less restrictive, means are available to achieve its goal. The government must prove that the true purpose of its actions is to accomplish its compelling objective, and that the objective would be at risk if it does not use classifications.

  • Strict Scrutiny under Equal Protection – is the use of a classification necessary to accomplishing a compelling governmental objective? Necessary under this level of scrutiny means that the objective could not be achieved without the use of classifications.
  • Strict Scrutiny under Due Process – are the means narrowly tailored to accomplish the government’s compelling objective?

Example of Strict Scrutiny Standard

A number of violent terrorist assaults have occurred in the country, perpetrated by members of a religious sect from another nation. The federal government, in an attempt to quell the tide, passes legislation prohibiting admission to the country of anyone of that particular religious faith. Citizens of the nation are divided on the issue; some are pleased with the new law, and others are outraged that the new law flies in the face of the constitutionally guaranteed right to religious freedom.

This is a very difficult issue, which the Supreme Court may be asked to review. Because this law appears to violate a basic equal rights principle, it requires the highest standard of review, or strict scrutiny. The court must first determine whether the purpose is compelling, meaning it is something that is crucial or necessary, rather than something that is desired or preferred. Examples of issues commonly determined to be compelling include preserving the lives of many people, and national security.

In this example of a strict scrutiny case, which would violate the fundamental right of religious freedom to many people, the court may also consider the likelihood that taking such drastic action would have a positive effect, and whether there is a less restrictive method of protecting the American people from such threats.

Determining Suspect Classification

In each of these examples, the determining factor for whether the Supreme Court should use the strict scrutiny standard on the matter revolves around the use of “suspect classifications.” The Supreme Court has established a method for determining whether a classification used in a statute or governmental policy meets the “suspect classification” level. The class must:

  • Be definable as a group, based on “obvious, immutable, or distinguishing characteristics”
  • Have experienced a history of discrimination
  • Be a minority, or be “politically powerless”
  • Have little relationship to the government’s proposed legislative or policy goals, or to the group’s members’ ability to contribute to society

The Court consistently recognizes classifications based on race, national origin, and alien status to require the strict scrutiny standard of review. Other classifications may be considered suspect upon review of the specific circumstances.

The Infamous Footnote Four

In 1938, the U.S. Supreme Court heard a case dealing with the illegality of using additive fats in milk sold in interstate commerce (United States v. Carolene Products Co. 304 U.S. 144 (1938)). The defendant argued that the new law was unconstitutional on grounds of both the Commerce Clause and due process. While the Court ultimately determined the law to be constitutional, using the rational basis standard of review, it also defined, in a footnote, a method for determining whether an issue requires a higher level of review.

In the Court’s opinion, Associate Justice Harlan Stone introduced the idea of different levels of scrutiny for different types of issues. Footnote Four of the opinion outlines considerations requiring a higher level of judicial scrutiny, referred to as “strict scrutiny.”

  • Legislation or policy which, on its face, violates a provision of the U.S. Constitution
  • Legislation or policy that attempts to distort or manipulate the political process
  • Legislation or policy that discriminates against minorities, particularly those who lack sufficient numbers, which would give them power to seek a remedy through the political process

Related Legal Terms and Issues

  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Legislation – A law, or body of laws, enacted by a government.
  • Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.

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