George Mason Law Review Civil Rights Law Journal

The Levels of Scrutiny in Judicial Review

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The Levels of Scrutiny in Judicial Review

by JRO on JUNE 17, 2013

Judicial review remains the core of the U.S. system of government. It ensures that every action of the legislative as well as executive branches of the U.S. government is subject to both review and probable cancelation by the judiciary. Judicial review allows the Supreme Court to play a dynamic role in guaranteeing that all other arms of the government abide by the American constitution.

The present-day constitutional adjudication maintains an exhaustive judicial review system that consists of several levels of scrutiny. Judicial review is composed of three separate levels of judicial review: strict, intermediate, and rational basis or minimal scrutiny. Together, they remain the most noteworthy aspects of the prevailing constitutional analysis.

Strict Scrutiny

Strict scrutiny remains the most severe standard of legal assessment as practiced in U.S. courts. It is invoked in order to assess the constitutional integrity of all laws as well as government programs. Strict scrutiny is essentially a type of legal review that judges use in determining the constitutionality of some laws. To overcome strict scrutiny, the legislature might very well have passed the law in order to promote what is termed a “compelling governmental interest,” and as such designed the law narrowly to gain that interest.

For a judge to apply strict scrutiny, the government must have significantly abridged a basic right with the enactment of the law or have voted into a law that has to do with a “suspect classification”.  Suspect classifications include factors such as race, country of origin, lineage religion, as well as poverty.

Intermediate Scrutiny

This level of scrutiny constitutes a test that is used in certain circumstances to determine the constitutionality of a law. To pass the test of intermediate scrutiny, the challenged law should promote a significant government interest in such a way that it is substantially related to that specific interest. As the term implies, the level of intermediate scrutiny is not as rigorous as strict scrutiny, but more so compared to the rational basis level. Intermediate scrutiny is invoked whenever there are challenges to equal protection to gender classifications, and in cases related to the First Amendment.

Intermediate scrutiny is similar to strict scrutiny with a key difference-while in a legal sense there are no distinctions between races, there remain real differences as pertains to men and women and as such intermediate scrutiny lets the courts focus on gender when determining discrimination cases.

Rational Basis or Minimal Scrutiny

Rational basis review remains a test designed to be used in situations to determine the constitutionality of a law. To be able to pass a minimal scrutiny review, it is imperative that the challenged law is logically linked to a government interest that is essentially legitimate. Rational basis remains the most lenient level of all judicial review. Generally, rational basis review is applied to all cases in which neither suspect classifications nor fundamental rights are at issue.

Rational basis has three distinct advantages. It promotes the legitimate interests of the government, is rationally linked to promoting those interests, and refrains from imposing any irrational burdens on people in general.

By Jason Billings


Summer, 2014

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