Strict Scrutiny

Author:Kenneth L. Karst

Page 2562

In its modern use, "strict scrutiny" denotes JUDICIAL REVIEW that is active and intense. Although the "constitutional revolution" of the late 1930s aimed at replacing JUDICIAL ACTIVISM with a more restrained review using the RATIONAL BASIS formula, even that revolution's strongest partisans recognized that "a more exacting judicial scrutiny" might be appropriate in some cases. Specific prohibitions of the BILL OF RIGHTS, for example, might call for active judicial defense, and legislation might be entitled to a diminished presumption of validity when it interfered with the political process itself or was directed against DISCRETE AND INSULAR MINORITIES. (See UNITED STATES V. CAROLENE PRODUCTS CO.) The term "strict scrutiny" appears to have been used first by Justice WILLIAM O. DOUGLAS in his opinion for the Supreme Court in SKINNER V. OKLAHOMA (1942), in a context suggesting special judicial solicitude both for certain rights that were "basic" and for certain persons who seemed the likely victims of legislative prejudice.

Both these concerns informed the WARREN COURT'S expansion of the reach of the EQUAL PROTECTION clause. "Strict scrutiny" was required for legislation that discriminated against the exercise of FUNDAMENTAL INTERESTS or employed SUSPECT CLASSIFICATIONS. In practice, as Gerald Gunther put it, the Court's heightened scrutiny was "strict' in theory and fatal in fact." The Court took a hard look at both the purposes of the legislature and the means used for achieving them. To pass the test of strict scrutiny, a legislative classification must be "necessary to achieve a COMPELLING STATE INTEREST." Thus the state's objectives must be not merely legitimate but of compelling importance, and the means used must be not merely rationally related to those purposes but necessary to their attainment.

The same demanding standard of review has emerged in other areas of constitutional law. Thus even some "indirect" regulations of the FREEDOM OF SPEECH?that is, regulations that do not purport to regulate message content?must be strictly scrutinized. Similarly, strict scrutiny is appropriate for general legislation whose application is attacked as a violation of the right of free exercise of religion. (See RELIGIOUS LIBERTY.) And in those places where SUBSTANTIVE DUE PROCESS has made a comeback?notably in defense of liberties having to do with marriage and family relations, abortion and contraception, and more...

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