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Judicial scrutiny

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Significance: These levels of judicial scrutiny and their consistent usage by the Court enable institutions and citizens alike to feel comfortable that similar cases will be adjudicated in similar ways.


The Supreme Court employs tests, or standards of review, with the aim of giving parties to a specific case some reasonable expectation as to the outcome of their particular constitutional claims. The use of standards permits each party to know, prior to the actual hearing, how the judiciary will probably approach the case and how the judiciary is likely to resolve any single issue. Variations in levels of review also signify the Court's willingness to provide (through more rigorous tests) increased judicial protection for “discreet and insular minorities,” as it did in United States v. Carolene Products Co. (1938). These tests can take many forms and can be used in many different constitutional inquiries, but the most common tests are those that involve the Court's scrutinizing governmental activity.


The Three Levels

The Court uses three levels of judicial scrutiny. The lowest standard of review is defined as ordinary, or minimal, scrutiny. Here, the burden to demonstrate a violation of the Constitution falls on the individual, as the Court presumes the governmental action in question is constitutional. When applying an ordinary level of scrutiny, the Court employs the rational basis test, which asks the government to demonstrate that the action is reasonably related to a legitimate governmental objective. If the government can do so, then the Court will reject the argument of the petitioner and the action will be deemed constitutional. The Court regularly uses ordinary scrutiny in cases involving economic regulation, such as Williamson v. Lee Optical Co. (1955), and ones in which the legislative classification does not warrant increased judicial protection, such as Massachusetts Board of Retirement v. Murgia (1976). An intermediate, or heightened, level of scrutiny is applied by the Court when a government action potentially discriminates on the basis of gender or illegitimacy and therefore violates the equal protection clause of the Fourteenth Amendment. The impetus for applying a more rigorous test in the areas of gender and illegitimacy stems from the perception that these groups require additional or heightened judicial protection due to their status as (numerical or de facto) minorities. Because of the heightened nature of the review, the Court does not adopt the presumption of constitutionality standard found in the ordinary level of scrutiny but instead mandates that the government demonstrate more than simply a reasonable purpose for the law. Intermediate review requires that the government identify an important governmental objective that is substantially furthered by that particular action. Craig v. Boren (1976) is the principal case that formally introduced an intermediate level of scrutiny. In Craig, the Court addressed the issue of gender discrimination by reviewing an Oklahoma statute that prohibited the sale of 3.2 percent beer to women under the age of eighteen and men under the age of twenty-one. In an opinion written by Justice William J. Brennan, Jr., the Court ruled that under the newly instituted intermediate standard of review, the Oklahoma legislature could not satisfy the requirements set up by the test. The law treating men differently than women, Brennan argued, “did not serve important governmental objectives and [was not] substantially related to [the] achievement of those objectives.” The third level of judicial scrutiny is the most difficult for the government to satisfy. Strict scrutiny refers to the standard used by the Court when assessing the constitutionality of governmental actions that may interfere with fundamental rights or potentially discriminate on racial grounds. In the area of racial discrimination, the Court, in Korematsu v. United States (1944), noted that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny.” As such, the Court adopts a presumption of unconstitutionality when applying this most rigorous test; it asks the government to articulate a compelling reason for discriminating based on race or impinging on a fundamental right. Additionally, the Court insists that the government action be closely related to the state's compelling objective. If the government is going to discriminate based on racial classifications or regulate one of the most fundamental freedoms, the Court demands that it have an extraordinarily important reason for doing so. Needless to say, very few governmental actions have ever satisfied the strict scrutiny test.


Some Guidelines

Distinctions between differing levels of review and the subsequent application of the actual tests are not always easy to define. The difference between an important governmental objective and a legitimate one or between means that are closely related and ones that are merely substantially related are not always clear. However, the Court has provided some guidelines for the application of the various tests. A compelling governmental interest is one that is of paramount importance, and a close relationship is one in which the Court is satisfied that there is no alternative, that the government has no option but to interfere with a fundamental right or discriminate based on race. Korematsu v. United States (1944) provides the most cited example. The case involved the Court's review of the constitutionality of President Franklin D. Roosevelt's executive order mandating that people of Japanesee ancestry on the West Coast adhere to certain restrictions on their freedom (including curfews, detentions, and relocations) during the early part of World War II. In upholding the order, the Court claimed that a “pressing public necessity” may justify the violation of certain freedoms and discrimination against certain groups. Although the Court applied the strict scrutiny test, the government cited national security as a compelling reason for detaining Japanese Americans. Additionally, the government claimed that in order to maintain national security during such a major conflict, it had no alternative but to restrict the extension of some basic freedoms to a group of Americans. Korematsu is the only case in which the Court applied the strict scrutiny test to a racially based restriction and upheld the law.



Further Reading

  • Chemerinsky, Erwin. “Breakdown in the Levels of Scrutiny.” Trial 33 (March, 1997): 70-71.
  • Coffin, Elizabeth Buroker. “Constitutional Law: Content-based Regulations on Speech, a Comparison of the Categorization and Balancing Approaches to Judicial Scrutiny.” University of Dayton Law Review 18 (Winter, 1993): 593-633.
  • Devins, Neal, and Davison M. Douglas, eds. A Year at the Supreme Court. Durham, N.C.: Duke University Press, 2004.
  • Levinson, Sanford. “Tiers of Scrutiny--from Strict Through Rational Bases--and the Future of Interests: Commentary on Fiss and Linde. Albany Law Review 55 (1992): 745-761.
  • Mongkuo, Maurice Y. Race Preference Programs and the United States Supreme Court Strict Scrutiny Standard of Review. Lewiston, N.Y.: Edwin Mellen Press, 2005.
  • O’Brien, David. Constitutional Law and Politics, Volume Two: Civil Rights and Liberties. 6th ed. New York: W. W. Norton, 2005.
  • Wexler, Jay D. “Defending the Middle Way: Intermediate Scrutiny as Judicial Minimalism.” George Washington Law Review 66 (January, 1998): 298-352.