Strict scrutiny is the most demanding level of judicial review courts apply when laws affect fundamental rights (like voting or marriage) or use suspect classifications (like race). Under strict scrutiny, the government must prove a compelling interest and that the law is narrowly tailored to achieve that interest. Nearly all laws fail this test.
The Court applies strict scrutiny rarely because doing so almost certainly strikes down the law. For example, a law banning voting for people with red hair would fail strict scrutiny because there's no compelling government interest in such a ban, and it's overbroad. A law criminalizing interracial marriage would fail because it classifies by race.
In contrast, the Court uses rational basis review for laws affecting ordinary rights. Under rational basis, laws are presumed constitutional and need only serve a legitimate government interest by rational means. Nearly all laws pass rational basis review. A law banning driving while drunk passes rational basis (legitimate interest in safety, rational means to that end). This creates enormous pressure on courts to decide whether a right is fundamental or which classification is suspect—that decision often determines the outcome.
Strict scrutiny protects the most important rights and prevents discrimination against disfavored groups. It's the strongest protection the Constitution offers.
People often think strict scrutiny always strikes down laws. In practice, it doesn't—the government can sometimes show a compelling interest and narrow tailoring.
Strict scrutiny protects the most important rights and prevents discrimination against disfavored groups. It's the strongest protection the Constitution offers.
People often think strict scrutiny always strikes down laws. In practice, it doesn't—the government can sometimes show a compelling interest and narrow tailoring.