Legalese — Strict Scrutiny

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If you are a nerd like me and you follow not so much the news but the inner workings of the court battles that the news then reports on, in the past week you have heard the phrase “strict scrutiny” on more or less a continual loop.  It occurred to me that “strict scrutiny” might be one of those legalese phrases that is just standard for most attorneys but that people who don’t live in legal-land might not be familiar with.

Strict scrutiny is a standard that a judge would use in deciding whether or not to strike down a certain kind of law.  There are three levels of judicial scrutiny: strict scrutiny, intermediate scrutiny, and rational basis review.  Because this is a complicated concept, I’m only going to talk about strict scrutiny here. 

Strict scrutiny is applied when you are dealing with a law (or government action) that affects a fundamental constitutional right and that right is being restricted or infringed upon, or when the action that the government is taking affects a suspect class, like race, religion, or national origin.  To be a member of a suspect class, that class must have a history of discrimination and have obvious characteristics that generally make it politically powerless.  To put that in plain English, if it were a law affecting your ability to get a driver’s license, it wouldn’t be subject to strict scrutiny, since your ability to drive is not a fundamental constitutional right, and has nothing to do with your race, religion, or national origin.  However, if the law in question were to restrict your ability to vote, since that is a fundamental constitutional right it would be subject to strict scrutiny.

Once you have established that the law you are talking about does affect a person’s fundamental constitutional right or only applies because they are a member of a suspect class (for example, the law only applies to Asians or people who practice a particular religion,) then you move on to the three part test to see if the law can still be good. 

Part one:  The law must be justified by a compelling governmental interest.  It isn’t 100% clear what that is, but it can be something like national security.  For example, we have freedom of speech, but if you work for the CIA you can be forbidden from talking about classified information for reasons of national security.  Preserving the lives of large numbers of people is another compelling reason.

Part two:  The law must be written in such a way that it is ‘narrowly tailored’ to meet its goals.  Whatever that compelling governmental interest is, the law has to be written so that it only addresses that compelling interest and no more.

Part three:  Whatever method the law proscribes for accomplishing its goal, it has to be the least restrictive method.  In other words, there can’t be another way that would accomplish the same goal with fewer restrictions.  It is okay if there is another way that would be the same, restrictive-wise, but not fewer.  This is similar to the ‘narrowly tailored’ test, but not exactly the same.   

So obviously, the person trying to have the law stricken down is going to argue that the law is subject to strict scrutiny, and the person trying to have the law upheld will argue that the court should use some other standard, since it is a really tough standard to beat. One day, I’ll talk about which kinds of laws fall under the Intermediate scrutiny or a rational basis review and what those mean, but for now, since I hear the variations on the word “vote” more than I hear common words like “the” and “and,” strict scrutiny is the one you need to know about.

Nothing in this article should be construed as legal advice. It is being offered for informational purposes only.

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