Strict scrutiny

Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or intermediate scrutiny. These standards are used to test statutes and government action at all levels of government within the United States.

The idea of "levels of judicial scrutiny", including strict scrutiny, was introduced in United States v. Carolene Products Co. (1938), one of a series of decisions testing the constitutionality of New Deal legislation. The first and most notable case in which the Supreme Court applied the strict scrutiny standard and found the government's actions valid was Korematsu v. United States (1944). In Korematsu the Court upheld the government ruling 6-3 that the need to protect the country from espionage outweighed the rights of Mr. Korematsu.^[1]

U.S. courts apply the strict scrutiny standard in two contexts: when a fundamental constitutional right is infringed,^[2] particularly those found in the Bill of Rights and those the court has deemed a fundamental right protected by the Due Process Clause or "liberty clause" of the 14th Amendment, or when a government action applies to a "suspect classification," such as race or national origin.

To pass strict scrutiny, the law or policy must satisfy three tests:

• Compelling governmental interest. While the Courts have never clearly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.

• Narrowly tailored refers to achieve that goal or interest. If the government action includes too much (overbroad) or fails to address important parts of the compelling interest, then the rule is not considered narrowly tailored.

• least restrictive means must be used for achieving that interest. That is, there cannot be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if 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 separately.