Levels of Judicial Scrutiny

Why This Matters

When courts evaluate whether a law violates the Constitution, they don't apply a one-size-fits-all analysis. Instead, they select a level of scrutiny based on what rights are at stake and who is affected. This framework determines how hard the government must work to justify its actions—and understanding it unlocks your ability to analyze virtually every equal protection and due process question you'll encounter. The scrutiny framework reflects deeper constitutional values: which rights deserve the most protection, which groups have historically faced discrimination, and how much deference courts should give to democratic decision-making.

You're being tested on more than just definitions. Exam questions—especially FRQs—will ask you to identify the correct standard, apply it to facts, and explain why that level applies. Don't just memorize that strict scrutiny requires a "compelling interest"—know that it applies because fundamental rights or suspect classifications trigger heightened judicial skepticism. The real skill is matching facts to framework, then walking through the analysis step by step.

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Deferential Review: Trusting Legislative Judgment

When laws regulate ordinary economic or social matters without targeting protected groups or fundamental rights, courts presume the law is valid. The judiciary defers to democratic choices unless the challenger proves the law is irrational.

Rational Basis Review

• Lowest level of scrutiny—the government wins unless the law has no rational connection to any legitimate purpose
• Burden on the challenger to prove the law is arbitrary; courts will even hypothesize legitimate reasons the legislature might have had
• Applied to economic regulations and social welfare laws—think zoning, licensing requirements, and tax classifications

Rational Basis "With Bite"

• Nominally rational basis, but applied more rigorously—courts look skeptically at laws that seem designed to harm disfavored groups
• Key cases: Romer v. Evans and City of Cleburne—where the Court struck down laws under rational basis by examining actual legislative purposes
• Watch for this in LGBTQ+ rights and disability cases—it signals judicial discomfort with discrimination that doesn't fit neatly into suspect class doctrine

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Heightened Review: Balancing Rights and Interests

For classifications and regulations that fall between ordinary legislation and fundamental rights, courts apply intermediate scrutiny. The government must do more than assert a legitimate interest—it must demonstrate a substantial fit between means and ends.

Intermediate Scrutiny

• Requires an important government interest and means that are substantially related to achieving it—not just rationally connected
• Burden shifts to the government to justify the classification, unlike rational basis review
• Primary applications: gender discrimination (Craig v. Boren) and content-neutral speech regulations—where history shows a pattern of discrimination but not as severe as race

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Strict Review: Maximum Judicial Skepticism

When laws burden fundamental rights or use suspect classifications like race or national origin, courts apply the most demanding standard. The government must prove necessity, not just reasonableness, and the law is presumptively unconstitutional.

Strict Scrutiny

• Compelling government interest required—not just important or legitimate, but of the highest order (national security, remedying past discrimination)
• Narrowly tailored means—the law must be precisely drawn and use the least restrictive alternative available to achieve its goal
• "Strict in theory, fatal in fact"—laws rarely survive, though affirmative action cases (Grutter, Fisher) show it's not automatic invalidation

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Specialized Standards: Context-Specific Tests

Some constitutional questions have generated unique standards that don't fit neatly into the three-tier framework. These tests reflect the Court's attempt to balance competing interests in particularly sensitive contexts.

Undue Burden Test

• Developed in Planned Parenthood v. Casey (1992) for pre-viability abortion regulations—a law is unconstitutional if its purpose or effect places a substantial obstacle in the path of a woman seeking an abortion
• Focuses on real-world impact rather than just legislative intent—courts examine how regulations actually affect access to services
• Note: Dobbs v. Jackson (2022) overruled Casey and eliminated the constitutional right to abortion, returning the issue to rational basis review at the federal level; however, understanding the undue burden test remains important for analyzing state constitutional claims and historical doctrine

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Quick Reference Table

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Self-Check Questions

1. A state passes a law requiring all food trucks to obtain a $500 annual license. A challenger argues this is unconstitutional. What level of scrutiny applies, and what must the challenger prove to win?

2. Compare the government's burden under intermediate scrutiny versus strict scrutiny. Why does the Constitution demand more justification for race-based classifications than gender-based ones?

3. A city ordinance prevents group homes for people with intellectual disabilities from locating in residential neighborhoods, though it allows other group living arrangements. What level of scrutiny would likely apply, and why might a court look beyond the rational basis label?

4. If an FRQ asks you to analyze a state law requiring voters to show photo ID, what level of scrutiny would you apply, and what framework would structure your analysis?

5. Explain why the undue burden test represented a middle ground in abortion jurisprudence. How did it differ from both strict scrutiny and rational basis review in terms of what the government had to prove?