Strict scrutiny

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Strict scrutiny is the second most stringent standard of judicial review used by United States courts reviewing federal law (the most exacting standard, "super strict scrutiny," is used to review prior restraints outside of the Near v. Minnesota exception). Along with the lower standards of rational basis review and intermediate scrutiny, strict scrutiny is part of a hierarchy of standards courts employ to weigh an asserted government interest against a constitutional right or policy that conflicts with the manner in which the interest is being pursued. Strict scrutiny is applied based on the constitutional conflict at issue, regardless of whether a law or action of the U.S. federal government, a state government, or a local municipality is at issue. It arises in two basic contexts: when a "fundamental" constitutional right is infringed, particularly those listed in the Bill of Rights; or when the government action involves the use of a "suspect classification" such as race or national origin that may render it void under the Equal Protection Clause. These are the two applications that were anticipated in footnote 4 to United States v. Carolene Products.

To pass strict scrutiny, the law or policy must satisfy three prongs:

First, 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.

Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (over-inclusive) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored.

Finally, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because 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 as a separate prong.

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 subject to this standard are struck down. However, an empirical study of strict scrutiny decisions in the federal courts, by Adam Winkler, found that laws survive strict scrutiny over thirty percent of the time. In one area of law, religious liberty, laws survived strict scrutiny review in nearly sixty percent of applications.^[1]

[edit] De jure versus de facto discrimination

As applied in Korematsu v. United States, upholding as constitutional the internment of Japanese Americans during World War II, strict scrutiny was limited to instances of de jure discrimination, where a racial classification is written into the language of a statute. Justice Byron White, in Washington v. Davis (1976), also applies the test to instances where such an explicit classification is not made, but where disproportional impact is coupled with discriminatory intent. In doing so, he suggests that such intent elevates a seemingly de facto form of discrimination to a more invidious de jure form.

The 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 (a) the impact is so “stark and dramatic" as to be unexplainable on non-racial grounds, as in Yick Wo v. Hopkins; (b) the historical background suggests intent; or (c) the legislative and administrative records show intent.

[edit] References

1. ^ Winkler, Adam, "Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts" . Vanderbilt Law Review, Vol. 59, p. 793, 2006: http://ssrn.com/abstract=897360

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