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Levels of Scrutiny

MARCH 6, 2018 · MARIAM MORSHEDI

How courts determine if the government is violating the Constitution

Courts come up with guidelines to help make determinations. When it comes to reviewing whether a government action (often a law or a regulation) violates the Constitution, a court first chooses a
Level of Scrutiny.

Determining a Level of Scrutiny

The court must determine whether it will be skeptical of

government action, or be less nit-picky. That depends on the
sensitivity of the issue. Certain liberties are more highly
protected than others. Certain classes of people are more highly
protected than others. These factors raise suspicion. 

The court will evaluate various factors that are likely to raise
suspicion to determine the level of scrutiny. 

Spectrum

You can consider the levels of scrutiny as existing on a

spectrum: where Rational-Basis Review is at one end and Strict
Scrutiny is at the other.  

Our infographic outlines the three most common points on the

spectrum (Rational-Basis, Intermediate Scrutiny, and Strict
Scrutiny). The Supreme Court has found the following situations
to correspond to these levels of scrutiny.

Rational-Basis Review

The Supreme Court came up with Rational-Basis Review in

Nebbia v. New York (1934). The NY government had decided to
regulate the prices of dairy (setting a minimum retail price).
Nebbia, a store owner, violated the law and challenged that his
conviction was unfair. The Due Process Clause in the
Constitution, Nebbia said, protected him against unfair or
unreasonable regulatory power.

In denying Nebbia of his claim, the Supreme Court said the

government has the right to create general restrictions on
private conduct for the purpose of regulating the economy, so
long as the government action is not "arbitrary, discriminatory,
or demonstrably irrelevant" to the action regulated. 

This case did not deserve any higher level of scrutiny because it
did not involve a particularly sensitive issue, like free speech or
discrimination against someone in a protected class. It was, in
the Court's opinion, just regular government regulation, and it
only had to be reasonable.

Strict Scrutiny

Strict Scrutiny is at the opposite end of the spectrum. The

Supreme Court has declared government regulation should be
scrutinized very strictly when it infringes on a protected liberty
(like procreation or marriage) or a protection action (like
political speech), or when it unfairly discriminates against a
protected class (like race or national origin). 

Skinner v. Oklahoma (1942)  was an early case in which the

Court decided the harshest review (strict scrutiny) was
appropriate. Oklahoma had passed a law allowing the state to
sterilize a person who was convicted three or more times of a
"felony of moral turpitude." The Court said the act, intending to
deprive an individual of one of the most basic liberties - "a right
which is basic to the perpetuation of a race" - deserved "strict
scrutiny." The Court had not yet adopted the formal
characterization of the standard that courts use today
(reviewing to ensure the law is "narrowly tailored to achieve a
compelling government interest").

A well-known case in which the Supreme Court applied Strict

Scrutiny and made the rare ruling in favor of the government is
Korematsu v. United States (1944). During a state of war with
Japan, the U.S. government had issued an Executive Order that
all Japanese must be excluded from certain sensitive areas. One
of them was San Leandro, California, where Korematsu lived. Of
Japanese descent, Korematsu was convicted for refusing to
leave. He challenged the law as a violation of his Constitutional
liberty rights. The Court admitted that classifications based on
race had to satisfy the most "rigid scrutiny" (strict scrutiny) but
said the "circumstances of direst emergency and peril" justified
the action. Korematsu is known today as an "ugly" mark of our
nation's past, but it has never been explicitly overruled. See this
article in Politico connecting the case to the case over Trump's
Travel Ban. And one in the Washington Post written by
Korematsu's daughter.

During the civil rights era and through today, the Supreme Court
has applied Strict Scrutiny to government actions that classify
people based on race. For example, in Loving v. Virginia (1967),
the Supreme Court applied Strict Scrutiny to strike down
Virginia's law banning interracial marriage.

Intermediate Scrutiny

Government classifications based on gender deserving a

moderate level of scrutiny ("quasi-suspect classifications").
Ironically enough, the standard was created in a case bought by
a male against an Oklahoma law allowing females to purchase
alcohol at a younger age (18) than it allowed males (21). In
Craig v. Boren (1976), the Supreme Court said the law did not
withstand "intermediate scrutiny." 

Restrictions on certain types of speech that are regarded as less

expressive than political speech (like commercial speech) also
get intermediate scrutiny. The Supreme Court will be hearing
NIFLA v. Becerra this term, a case in which the appeals court
applied intermediate scrutiny to a California law requiring anti-
abortion clinics to give notice that abortions are available
elsewhere. NIFLA will argue to the Supreme Court that the law
deserves Strict Scrutiny.

More information

See this report on Levels of Scrutiny Under the Equal Protection

Clause from the University of Missouri, Kansas City.

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