Standard by which the Supreme Court evaluates the constitutionality of certain governmental actions. The three levels of judicial scrutiny are strict scrutiny, intermediate (or heightened) scrutiny, and ordinary (or minimum) scrutiny.
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.
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.
Relocation order posted in San Francisco in April, 1942.
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
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
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
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.
Black, Hugo L.
Brennan, William J., Jr.
Carolene Products Co., United States v.
Craig v. Boren
Equal protection clause
Korematsu v. United States