Strict Scrutiny
Strict scrutiny is the most demanding standard of judicial review applied to government action under the Equal Protection Clause and Substantive Due Process. It applies when government classifies based on a suspect class or burdens a fundamental right. The government bears the burden of showing the law is constitutional.
Elements
- Compelling government interest: the government must identify a compelling (not merely legitimate or important) interest served by the law
- Narrow tailoring: the law must be necessary to achieve that interest — it must be the least restrictive means available; overinclusive or underinclusive laws generally fail narrow tailoring
Triggers
Equal Protection — Strict scrutiny applies to:
- Suspect classifications: race, national origin, alienage (with exceptions for political functions and federal alienage)
- Laws drawn on these bases receive strict scrutiny regardless of the government’s stated purpose
Substantive Due Process — Strict scrutiny applies to burdens on fundamental rights:
- Right to vote, right to travel, right to marry (Loving v. Virginia), right to privacy (contraception), parental rights, rights enumerated in the Constitution
- Note: Dobbs v. Jackson Women’s Health Organization (2022) overruled Roe v. Wade — abortion is no longer a fundamental right
”Strict in Theory, Fatal in Fact”
Strict scrutiny is often described as nearly always fatal. However, some laws survive:
- Grutter v. Bollinger (2003): race-conscious admissions program survived — student body diversity held compelling; narrowly tailored
- Adarand Constructors v. Peña (1995): federal affirmative action programs subject to strict scrutiny
- Korematsu v. United States (1944): Japanese internment survived strict scrutiny (wrongly decided; later repudiated in Trump v. Hawaii (2018))
Discriminatory Intent Requirement
A facially neutral law is not subject to strict scrutiny based on disparate impact alone — plaintiff must prove discriminatory intent (Washington v. Davis, 1976). Once intent is shown, strict scrutiny applies.
Policy
- Strict scrutiny reflects judicial distrust of government decisions based on race or other invidious characteristics; it operationalizes Carolene Products footnote 4’s concern for “discrete and insular minorities”
- Fundamental rights receive heightened protection because democratic majorities cannot be trusted to protect them against their own will
- The “fatal in fact” characterization overstates — approximately 30% of cases survive — but the standard is genuinely demanding
Key Cases
| Case | Rule |
|---|---|
| Korematsu v. United States (1944) | Established strict scrutiny for racial classifications (result later repudiated) |
| Loving v. Virginia (1967) | Anti-miscegenation law struck under strict scrutiny; race was the explicit basis |
| Washington v. Davis (1976) | Discriminatory purpose (not just disparate impact) required to trigger strict scrutiny |
| Grutter v. Bollinger (2003) | Diversity in higher education is a compelling interest; race-conscious admissions can be narrowly tailored |
| Adarand Constructors v. Peña (1995) | Federal affirmative action programs subject to strict scrutiny |
| Students for Fair Admissions v. Harvard (2023) | Race-conscious admissions programs at Harvard and UNC struck down; diversity compelling but programs not narrowly tailored |