Standards of Supreme Court Scrutiny

Justice Scalia

Justice Kennedy

Justice Ginsburg


The Standards of Scrutiny from Highest to Lowest

It doesn’t matter whether the Justice is conservative, moderate, or liberal—the standards of scrutiny remain largely unchanged over time.

Heightened scrutiny is triggered when law discriminates based on a protected class. Must be:

  • Facially discriminatory: Explicitly involves the protected class. Or,

  • Facially neutral, but still discriminatory. Must prove:

    • Discriminatory effect, and

    • Discriminatory intent (what were the motives behind the law?)

  • This includes: equal protection cases, fundamental rights

Strict scrutiny

To pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest.

  • Strict scrutiny applies to: race (even white people), national origin, religion, alienage, and poverty.

  • 5 justices have never held sex should require strict scrutiny

  • Strict scrutiny is also triggered when a fundamental right is at stake

Intermediate scrutiny

To pass intermediate scrutiny, the challenged law must further an important government interest by means that are substantially related to that interest.

  • Intermediate scrutiny is used in equal protection challenges to gender classifications, as well as in some First Amendment cases.

  • The burden rests on the state

Undue Burden

This standard is mostly applied in abortion cases. For example, in the field of reproductive rights, having the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a fetus that is not yet viable is an undue burden.

An undue burden is found even where a statute purports to further the interest of potential life or another valid state interest, if it places a substantial obstacle in the path of a woman's fundamental right to choice.

Congruent and Proportional

Remedial legislation against the states has to address an actual, identified and existing pattern of discrimination (congruence). Proportionality means that the actions taken need to be enough to fix the identified issue. Congress can't use draconian penalties to fix discrimination that could be addressed with something much less severe.

In City of Boerne, the Court adopted the remedial view that only allows Congress to provide remedies for rights or violations recognized by courts (not to define the meaning and scope of those rights). “However, in Morrison, the Court addressed the state action doctrine that says that the 14th Amendment cannot create remedies for individuals.”

Rational Basis

Rational Basis only requires a rational reason for a legitimate/permissible end. The government bears the burden of proving is has a rational reason for the law it wants to impose.

  • If the right at issue isn’t fundamental, then rational basis applies.

  • This is a very easy standard to satisfy.