Tackling the most important topics of law school, Part 6a: Constitutional judicial review and strict scrutiny

September 5, 2013

Law School 101a(Editor’s note: Over the next ten weeks, we’ll be covering some of the most prominent legal concepts taught in law school to help students faced with these topics, whether for the first time or as part of a review, better comprehend them.)

The last two topics in this series (IRAC/legal writing and hearsay) were noted as being particularly relevant not only in law school and for the bar exam, but also in careers following law school.

This week’s topic, while being relevant for law school and the bar exam, is not as likely going to be relevant on a regular basis in your post-law school work (unless you happen to write blogs analyzing the constitutionality of laws): levels of judicial review.

Specifically, these are the levels of judicial review when considering the constitutionality of laws or other government actions.  There are several levels, each applying in a different set of circumstances.

Strict Scrutiny

As the name implies, strict scrutiny is the most exacting level of judicial review.  It is applied in two circumstances: when a “fundamental right” under the Constitution is infringed and when government action discriminates against a “suspect class.”

Both of the quoted phrases above require explanation.

First, a “fundamental right” includes both rights specifically enumerated in the Constitution and those defined by the Supreme Court (often call “unenumerated”), the majority of which arise from the Due Process Clauses of the Fifth and Fourteenth Amendments.

Enumerated rights include freedom of speech, freedom of religion, right to a trial by jury in criminal prosecution, freedom from unreasonable searches and seizures, etc; unenumerated rights include voting, interstate travel, and various aspects of privacy (e.g., the right to marriage, contraception, etc).

A “suspect class” is a statutorily-defined group that can be based on race, religion, national origin, or alienage.  These examples of a “suspect class” were determined by the Supreme Court using a three-part test:

  1. The group must have suffered a history of discrimination;
  2. It must exhibit “obvious, immutable, or distinguishing characteristics that define them as a discrete group;” and
  3. The group must show that they are a minority or “politically powerless.”

In practice, courts are generally loathe to extend suspect classification to additional groups; if any kind of added constitutional protection is to be extended to a group facing state discrimination, “quasi-suspect classification” is almost always the route chosen by courts today (more on “quasi-suspect classes” later).

In any case, if a fundamental right is infringed, or if a suspect class is being discriminated against, the reviewing court must use strict scrutiny to review the law or other government act.

To pass strict scrutiny, the government action must further a “compelling governmental interest,” and the action must be narrowly tailored to achieve that interest.   Here that is again as numbered elements:

The government action must be…

  1. Justified by a compelling governmental interest;
  2. Narrowly tailored to achieve that interest; and
  3. The least restrictive means for achieve that interest.

A governmental interest is “compelling” if it is necessary or crucial, not just preferred or elective.  National security is a prime example of a “compelling interest,” but other interests such as maintaining the health and welfare of the populace and the protection of other constitutional rights have also been upheld as “compelling.”

Government action is considered to be “narrowly tailored” when it neither overextends its reach beyond the scope of the interest nor fails to address other necessary portions of this interest.  Courts have a great deal of discretion in determining whether an action is tailored narrowly, but in law school and bar exams, it should be pretty clear when something isn’t tailored narrowly enough.

As for the final element, “least restrictive” means that there cannot be a less constraining method for the government to achieve its interest.  In other words, if the court can conceive of another method for the government to meet its goals that is less restrictive on individual freedoms than the method being challenged, the government action will fail strict scrutiny and face invalidation.

With strict scrutiny covered, it’s easier to tackle the other levels of scrutiny, which we’ll get to in Part B of this topic.