Intermediate Scrutiny

Definition

Intermediate scrutiny is a level of judicial review applied by courts when evaluating the constitutionality of laws or government actions that involve important, but not fundamental, rights or classifications that are not considered suspect. This standard of review falls between the strict scrutiny and rational basis tests, requiring the government to demonstrate that the law or action is substantially related to an important government interest.

5 Must Know Facts For Your Next Test

1. Intermediate scrutiny is used to review laws or government actions that implicate important, but not fundamental, rights or classifications that are not considered suspect.
2. The government must demonstrate that the law or action is substantially related to an important government interest to satisfy intermediate scrutiny.
3. Intermediate scrutiny is less stringent than strict scrutiny, but more rigorous than rational basis review.
4. Examples of rights that may be subject to intermediate scrutiny include commercial speech, gender-based classifications, and laws affecting illegitimate children.
5. The application of intermediate scrutiny has evolved over time, with the Supreme Court expanding and contracting its use in different contexts.

Review Questions

• How does the intermediate scrutiny standard of review differ from strict scrutiny and rational basis review?
  • Intermediate scrutiny falls between the strict scrutiny and rational basis tests. Unlike strict scrutiny, which requires the government to demonstrate that a law or action is narrowly tailored to achieve a compelling government interest, intermediate scrutiny only requires the government to show that the law or action is substantially related to an important government interest. This is a less demanding standard than strict scrutiny, but more rigorous than the highly deferential rational basis review, which only requires the government to demonstrate that the law or action is rationally related to a legitimate government purpose.
• Explain how the application of intermediate scrutiny has evolved over time and in different legal contexts.
  • The Supreme Court's application of intermediate scrutiny has evolved over time, with the Court expanding and contracting its use in different legal contexts. Initially, intermediate scrutiny was primarily used to evaluate gender-based classifications, but the Court has since applied it in other areas, such as commercial speech and laws affecting illegitimate children. The specific factors the Court considers and the degree of deference it affords the government have also varied, reflecting the Court's changing jurisprudence on the appropriate level of judicial review for different types of rights and classifications.
• Analyze the role of intermediate scrutiny in the context of securing basic freedoms, identifying civil rights, and ensuring equal protection for other groups.
  • Intermediate scrutiny plays a crucial role in balancing the protection of important, but not fundamental, rights with the government's ability to pursue important policy objectives. In the context of securing basic freedoms, intermediate scrutiny may be applied to laws or actions that implicate commercial speech or other economic liberties. When identifying civil rights and ensuring equal protection for other groups, intermediate scrutiny is used to evaluate laws or actions that involve classifications based on gender or legitimacy status, which are considered important but not suspect under the Equal Protection Clause. By requiring the government to demonstrate a substantial relationship to an important interest, intermediate scrutiny helps ensure that the government's actions are not unduly infringing on these important rights and interests, while still allowing for reasonable regulation.

Related terms

Strict Scrutiny:

The most stringent level of judicial review, which requires the government to demonstrate that a law or action is narrowly tailored to achieve a compelling government interest.

Rational Basis Review: The most deferential level of judicial review, which requires only that a law or government action be rationally related to a legitimate government purpose.

Protected Classes: Groups of people, such as those defined by race, color, religion, national origin, or sex, that are afforded heightened protection under the Equal Protection Clause of the Fourteenth Amendment.