View Full Version : Levels of scutiny

06-15-2010, 1:58 AM
Please pardon my ignorance on this but I'm pretty sure I have no clue. I keep hearing people talk about McDonald or Nordyke or some other case here or there and constantly mention the level of scrutiny. can anyone please educate me on the concept of varying levels of scrutiny?

06-15-2010, 3:29 AM
Interestingly, if you go to wikipedia.org and do a search for either "strict scrutiny" or "intermediate scrutiny" you'll get some useful information.

06-15-2010, 3:36 AM
Here you go:

Strict scrutiny
From Wikipedia, the free encyclopedia

This article is missing citations or needs footnotes. Please help add inline citations to guard against copyright violations and factual inaccuracies. (July 2008)
Strict scrutiny is the most stringent standard of judicial review used by United States courts reviewing federal law. Along with the lower standards of rational basis review and exacting or intermediate scrutiny, strict scrutiny is part of a hierarchy of standards employed by courts to weigh an asserted government interest against a constitutional right or principle that conflicts with the manner in which the interest is being pursued. Strict scrutiny is applied based on the constitutional conflict at issue, regardless of whether a law or action of the U.S. federal government, a state government, or a local municipality is at issue.
The notion of "levels of judicial scrutiny", including strict scrutiny, was introduced in footnote 4 to United States v. Carolene Products (1938), in the context of the New Deal. Governmental restrictions on constitutional rights that undergo strict scrutiny are most commonly but not invariably found invalid. The first and most notable case to apply strict scrutiny and find the governmental actions valid was Korematsu v. United States (1944), in which the Supreme Court upheld racial-based internment of Japanese Americans during World War II.
Contents [hide]
1 Applicability
2 Racial discrimination
3 Compelling state interest test
3.1 Notable cases
4 De jure versus de facto discrimination
5 See also
6 References

Strict scrutiny arises in two basic contexts: when a "fundamental" constitutional right is infringed, particularly those listed in the Bill of Rights and those the court has deemed a fundamental right protected by the liberty provision of the 14th Amendment; or when the government action involves the use of a "suspect classification" such as race or, sometimes, national origin that may render it void under the Equal Protection Clause. These are the two applications that were anticipated in footnote 4 to United States v. Carolene Products.
To pass strict scrutiny, the law or policy must satisfy three prongs:
First, it must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.
Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored.
Finally, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this 'least restrictive means' requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.
Legal scholars, including judges and professors, often say that strict scrutiny is "strict in theory, fatal in fact," because popular perception is that most laws subject to this standard are struck down. However, an empirical study of strict scrutiny decisions in the federal courts, by Adam Winkler, found that laws survive strict scrutiny over thirty percent of the time. In one area of law, religious liberty, laws survived strict scrutiny review in nearly sixty percent of applications.[1]
[edit]Racial discrimination

All race-based classifications must be subjected to strict scrutiny, not intermediate scrutiny, as the Supreme Court held in Adarand Constructors v. Peņa, 515 U.S. 200 (1995), overruling Metro Broadcasting, Inc. v. FCC (89-453), 497 U.S. 547 (1990). The overruled case had briefly allowed the use of intermediate scrutiny to analyze the Equal Protection implications of race-based classifications in the narrow category of affirmative action programs established by the federal government in the broadcasting field.
[edit]Compelling state interest test

The compelling state interest test is a test used by the US Federal Courts in due process and equal protection claims (all claims with Constitutional bases, actually) under the Fourteenth Amendment for state action and under the Fifth Amendment for federal action. It is part of the strict scrutiny analysis that a federal court will employ when either a suspect class or a fundamental right is involved. A government action or statute subject to strict scrutiny must be done in furtherance of a compelling state interest, and must be narrowly tailored to achieve that interest. The court will apply the strictest scrutiny to the state or federal action when it impacts or targets a specially protected class (e.g., a racial or ethnic group) or when a fundamental and Constitutionally protected right is involved (e.g. freedom of speech or the right to vote). The compelling state interest test is distinguishable from the rational basis test, which involves claims that do not involve a suspect class and involve a liberty interest rather than a fundamental right.
[edit]Notable cases
Sherbert v. Verner, 374 U.S. 398 (1963)
Wisconsin v. Yoder, 406 U.S. 205 (1972)
Employment Division v. Smith, 494 U.S. 872 (1990)
City of Boerne v. Flores, 521 U.S. 507 (1997)
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006)
[edit]De jure versus de facto discrimination

As applied in Korematsu v. United States, a wartime decision upholding as constitutional the internment during World War II of the Japanese Americans who had resided on the West Coast of the United States, strict scrutiny was limited to instances of de jure discrimination, where a racial classification is written into the language of a statute.
The Supreme Court's decision in Village of Arlington Heights v. Metropolitan Housing Development Corp. provided further definition to the concept of intent and clarified three particular areas in which intent becomes apparent, the presence of any of which demands the harsher equal protection test. The Court must use strict scrutiny if:
the impact is so “stark and dramatic" as to be unexplainable on non-racial grounds, as in Yick Wo v. Hopkins;
the historical background suggests intent; or
the legislative and administrative records show intent.
[edit]See also

Rational Basis Test
Intermediate scrutiny
Fundamental right
Suspect class
Constitutional Law

^ Winkler, Adam, "Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts" . Vanderbilt Law Review, Vol. 59, p. 793, 2006: http://ssrn.com/abstract=897360
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06-15-2010, 5:56 AM
ok thanks...

06-15-2010, 8:57 PM
wouldn't rely on wikipedia for anything of actual importance...there is no verification needed.....