Strict scrutiny

Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws.  To pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest.  A famous quip asserts that strict scrutiny is "strict in name, but fatal in practice." Accordingly, there exists a concern that an exceedingly rigid application of strict scrutiny will categorically invalidate legislation, while allowing courts to forego a true evaluation of a given laws purpose and value.

For a court to apply strict scrutiny, the legislature must either have significantly abridged a fundamental right with the law's enactment or have passed a law that involves a suspect classification.  Suspect classifications have come to include race, national origin, religion, alienage, and poverty. The Supreme Court provided a seminal exposition on suspect classifications in Carolene Products when it discussed, in one of the Court's most famous footnotes, "discrete and insular minorities." As suggested by this case, strict scrutiny represents an approach in which a presumption of constitutionality is shed in favor more exacting judicial review.

The doctrine substantiating this iconic standard of judicial review originated in relation to equal protection violations. In Skinner v. Oklahoma the Supreme Court presented strict scrutiny as a means of preventing invidious discrimination that subjected individuals to unequal treatment under the law. Doctrinally, the application of strict scrutiny is appropriate only where a law is facially discriminatory. When addressing the consideration of race in affirmative action programs, for example, the application of strict scrutiny is required. The Supreme Court recently affirmed this proposition in Fisher II.   The application of strict scrutiny, however, extends beyond issues of equal protection. Restrictions on content-based speech, for instance, are to be reviewed under the strict scrutiny standard as well. Notably, the Supreme Court has refused to endorse the application of strict scrutiny to gun regulations, leaving open the question of which precise standard of review is to be employed when addressing the Second Amendment. 

Strict scrutiny operates within a larger framework of stratified levels of judicial review. Some scholars and jurists, famously Justice John Paul Stevens, have criticized this categorical approach and have advocated for a more flexible and fluid form of judicial review.

Last updated in June of 2016 by Emanuel Francone.

Compare to intermediate scrutiny and rational basis.