Heightened Scrutiny

Introduction

Heightened scrutiny is a stricter form of judicial review used by US courts when a law affects fundamental rights or uses suspect classifications. It sits above the usual rational basis review and requires the government to justify its action with stronger reasons and a closer fit between means and ends.

There are two main variants:

• Intermediate scrutiny: typically used for sex and illegitimacy classifications.
• Strict scrutiny: used for race and national origin classifications, most state alienage classifications, and laws that burden fundamental rights or impose content-based limits on speech.

Knowing when each standard applies, what evidence the government must show, and how courts assess the fit between the law and the stated aims is essential for clear, confident constitutional analysis.

What You’ll Learn

• What “heightened scrutiny” means and how it differs from rational basis review
• When courts apply intermediate vs strict scrutiny
• The tests: “important interest/substantially related” and “compelling interest/narrowly tailored”
• Which rights and classifications trigger heightened scrutiny
• Leading cases across equal protection, substantive due process, and free speech
• How to structure an exam or memo answer step by step
• Common pitfalls (e.g., relying on stereotypes or weak data)
• Quick comparisons with rational basis and “rational basis with bite”

Core Concepts

How Courts Choose the Standard of Review

Courts pick the standard by looking at:

• The type of classification (e.g., race, sex, illegitimacy), and/or
• The right burdened (e.g., marriage, voting, privacy, speech).

Baseline: Most economic and social regulation gets rational basis review.

Heightened scrutiny is triggered when:

• The law targets suspect classes: race or national origin (strict scrutiny), alienage (usually strict for state laws; more deferential for federal measures).
• The law uses quasi-suspect classes: sex or illegitimacy (intermediate scrutiny).
• The law burdens fundamental rights: marriage, procreation, contraception, parental rights, interstate travel, voting.
• The law regulates speech based on content or viewpoint (strict scrutiny).

Intermediate Scrutiny

What the government must show:

• The law serves an important governmental interest, and
• The means are substantially related to achieving that interest.

Key features:

• For sex classifications, the Court often asks for an “exceedingly persuasive justification.”
• Reliance on broad generalisations or stereotypes is not enough.
• Statistical proof must be solid; weak correlations are unlikely to carry the burden.
• Administrative convenience alone usually fails.

Typical applications:

• Sex-based rules (e.g., admissions policies, benefits, alcohol regulations).
• Classifications based on illegitimacy (e.g., child support, benefits).

Common outcomes:

• Measures based on outdated notions about gender roles tend to fail.
• Carefully supported policies tied to real differences or credible objectives may pass.

Strict Scrutiny

What the government must show:

• The law serves a compelling governmental interest, and
• The law is narrowly tailored to achieve that interest (often framed as using the least restrictive means).

Key features:

• Courts demand a tight fit; overinclusive or underinclusive schemes struggle.
• Evidence must be concrete; speculation is insufficient.
• Alternatives that burden rights less will often defeat the law.

Typical applications:

• Race and national origin classifications.
• State alienage classifications (subject to established exceptions).
• Fundamental rights (e.g., marriage, procreation, voting).
• Content-based speech regulations (including viewpoint-based rules).

Common outcomes:

• Many laws fail strict scrutiny, though not all. For example, genuine national security measures can sometimes pass when supported by strong, specific evidence.

Burdens, Evidence, and Fit

• The government bears the burden under both intermediate and strict scrutiny.
• Courts assess not just stated aims but whether the evidence and design of the law actually match those aims.
• In remedial contexts (e.g., addressing discrimination), the government generally needs proof of the problem it is addressing and a remedy tailored to that problem.
• Narrow tailoring avoids both sweeping more conduct than necessary (overinclusiveness) and missing too much of the targeted harm (underinclusiveness).

Key Examples or Case Studies

United States v. Virginia (1996)

• Context: The Virginia Military Institute excluded women.
• Test applied: Intermediate scrutiny with the “exceedingly persuasive justification” formulation.
• Outcome: The policy failed; separate programme proposals did not provide genuine equality.
• Key point: Sex classifications need strong, evidence-based reasons; stereotypes will not do.

Craig v. Boren (1976)

• Context: Oklahoma allowed women aged 18–20, but not men, to buy 3.2% beer.
• Test applied: Intermediate scrutiny.
• Outcome: The state’s statistics were not strong enough; the sex-based difference failed.
• Key point: Intermediate scrutiny requires solid evidence linking the classification to the stated safety aim.

Brown v. Board of Education (1954)

• Context: Racial segregation in public schools.
• Test applied: Modern doctrine treats racial segregation as subject to strict scrutiny.
• Outcome: Segregation was unconstitutional.
• Key point: Racial classifications are highly suspect; equal protection forbids state-sponsored racial separation in schools.

Korematsu v. United States (1944) and its legacy

• Context: Wartime exclusion and internment of Japanese Americans.
• Test applied: The Court accepted a grave national security interest.
• Outcome: Upheld at the time; widely condemned since.
• Key point: The decision has been disavowed by the Supreme Court (Trump v. Hawaii, 2018). It is often cited to show the dangers of deferring to broad claims of necessity without exacting proof.

Obergefell v. Hodges (2015)

• Context: Same-sex couples challenged state bans on marriage.
• Test applied: The Court recognised marriage as a fundamental right and required strong justification for restrictions.
• Outcome: Bans were unconstitutional.
• Key point: When a law burdens a fundamental right, courts expect a compelling reason and a tight fit. Marriage licensing cannot exclude same-sex couples.

Reed v. Town of Gilbert (2015)

• Context: Sign code treated signs differently based on their content.
• Test applied: Strict scrutiny for content-based speech regulation.
• Outcome: The code failed; the distinctions were not narrowly tailored to any compelling aim.
• Key point: Content-based restrictions on speech generally trigger strict scrutiny and often fail.

Practical Applications

Step-by-step approach for problem questions or memos:

1. Define the claim: equal protection, due process, or First Amendment.
2. Identify the classification and/or the right burdened.
3. Select the standard of review:
   • Strict scrutiny: race, national origin, state alienage, fundamental rights, content-based speech.
   • Intermediate scrutiny: sex, illegitimacy.
   • Rational basis: most other classifications.
4. State the test clearly.
   • Intermediate: important interest + substantially related means.
   • Strict: compelling interest + narrowly tailored means (often least restrictive).
5. Assess the government’s interest.
   • Compelling: national security, remedying proven discrimination, protecting life and safety in a concrete, evidence-based way.
   • Important: traffic safety, educational goals, public health objectives, supported by credible data.
6. Analyse the fit.
   • Intermediate: avoid stereotypes; link must be real, not conjectural.
   • Strict: consider less restrictive alternatives; watch for over- or underinclusiveness.
7. Conclude cleanly: apply the facts to the prongs and give a reasoned result.

Common pitfalls to avoid:

• Misclassifying the standard (e.g., treating sex as rational basis).
• Treating “administrative convenience” as enough under intermediate scrutiny.
• Accepting shaky statistics at face value.
• Skipping the alternatives analysis under strict scrutiny.
• Ignoring that federal vs state alienage classifications may be treated differently.

Exam and practice tips:

• Flag the trigger early: right or classification.
• Quote the correct formulation of the test before applying it.
• Use the best-aligned precedent: Craig (sex), VMI (sex), Brown (race), Reed (speech), Obergefell (marriage), Skinner (procreation), Griswold (privacy).
• If facts are thin, discuss both sides: argue whether the interest truly meets the level required and whether the fit is sufficiently tight.

Context notes:

• Affirmative action in higher education: Students for Fair Admissions (2023) sharply limited race-conscious admissions, applying strict scrutiny with exacting demands for proof and tailoring.
• “Rational basis with bite”: Some cases (e.g., Cleburne) apply a more searching version of rational basis without formally moving to intermediate scrutiny; be ready to mention this if relevant.

Summary Checklist

• Identify whether the case involves a suspect or quasi-suspect classification or a fundamental right.
• Choose the correct standard: strict vs intermediate vs rational basis.
• State the test accurately:
  • Intermediate: important interest; substantially related means; no stereotypes.
  • Strict: compelling interest; narrowly tailored; consider less restrictive alternatives.
• Place the burden on the government and demand solid evidence.
• Check for over- and underinclusiveness.
• Use the right precedents for the category of claim.
• Address counterarguments on both the interest and the tailoring.
• Conclude with a clear, structured answer.

Quick Reference