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 determine which is weightier, a constitutional right or principle or the government's interest against observance of the 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. (1938), 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 (1944), in which the Court upheld the exclusion of Japanese Americans from designated areas during World War II.
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 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 a large number of 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 (overbroad) 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: there must not 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, but the Court generally evaluates it separately.
Legal scholars, including judges and professors, often say that strict scrutiny is "strict in theory, fatal in fact" since popular perception is that most laws subjected to the 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 that require strict scrutiny or intermediate scrutiny.
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 (1995), overruling Metro Broadcasting, Inc. v. FCC (89-453), 497 U.S. 547 (1990), 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
- Skinner v. State of Oklahoma, ex. rel. Williamson, 316 U.S. 535 (1942), cf. Buck v. Bell 274 U.S. 200 (1927)
- Brown v. Board of Education, 785 U.S. 981 (1954)
- One, Inc. v. Olesen, 301 U.S. 340 (1958)
- Sherbert v. Verner, 374 U.S. 398 (1963)
- Griswold v. Connecticut, 381 U.S. 479 (1965)
- Loving v. Virginia, 897 U.S. 113 (1967)
- Wisconsin v. Yoder, 406 U.S. 205 (1972)
- Roe v. Wade, 410 U.S. 113 (1973)
- Employment Division v. Smith, 494 U.S. 872 (1990)
- Romer v. Evans, 380 U.S. 144 (1996)
- City of Boerne v. Flores, 521 U.S. 507 (1997)
- Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006)
- United States v. Windsor, 191 U.S. 771 (2013)
- Intermediate scrutiny
- Rational Basis Test
- Fundamental right
- Suspect class
- Equal Protection
- Constitutional Law