Scrutinizing Scrutiny: Judicial Scrutiny and Its Implications

By Shannon Alvino

Shannon Alvino is a junior at The George Washington University majoring in Political Science and Criminal Justice.

           As soon as the Framers put down their pens and stumbled into the Philadelphia sunlight, our national government has been compartmentalized into three branches, each engaged in a delicate dance guided by a system of checks and balances enumerated in that governing document. One facet of this mutable tension is in courts’ power of judicial review, put forth in the seminal Marbury v. Madison decision.

“It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each,” [1] a quote that unfailingly reverberates within law school lecture halls on the first day.
It is through this judge-made doctrine that the judicial branch evaluates the constitutionality of executive and legislative actions, vigilantly safeguarding individuals’ rights. How does the Supreme Court shoulder this politically significant burden?  The answer is in two words: judicial scrutiny.
           When specific contested legislation finds itself on the corner of First and East Capitol Streets NE, the Justices push up the sleeves of their robes and apply either rational basis, intermediate, or strict scrutiny. Rational basis review was first utilized by the post-New Deal Court regarding economic regulation. This doctrine states that “so far as the requirement of due process is concerned, and in the absence of other constitutional restriction, a State is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose.” [2]
This highly deferential standard has been expanded well beyond questions of economic liberty to cases where no fundamental rights (such as the right to vote) or suspect classifications (including race and religion) are implicated. Categorizations like age, class, criminal history, and disability are placed under the weak microscope of rational basis review. This legislation is constitutional until proven not.
           Intermediate scrutiny sets the bar a little higher. Placing the burden of proof on the government, the Burger Court first applied this stratum of judicial review in examining the constitutionality of gender categories. Under this doctrine and in order to withstand constitutional challenge,“previous cases must establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” [3] The justices yank this out of their judicial toolbox to assess the “quasi-suspect” classifications of sex, illegitimacy, and immigration status. However, “indicia of suspectness” are malleable, often rendering their application imprecise and inconsistent,
           Strict scrutiny is the most exacting standard, a stanchion of individual liberties. After a lengthy examination of “filled milk”, Carolene Products’s famous Footnote Four implicitly envisioned variant levels of judicial scrutiny and discussed “whether prejudice against discrete and insular minorities may be a special condition, … which may call for a correspondingly more searching judicial inquiry.” [4]
However, the Court declined to utilize this stringent rule until it ironically condoned racial exclusion, the last time this form of discrimination was upheld. “All legal restrictions which curtail the civil rights of a single racial group are immediately suspect … It is to say that courts must subject them to the most rigid scrutiny.” [5] To survive strict scrutiny unscathed, a statute must be justified by a compelling state interest, narrowly tailored, and the least restrictive means of achieving that objective. Fundamental rights and unequivocally suspect classes trigger its use.
           As a quick review: rational basis requests that the regulation be rationally related to a legitimate state interest, intermediate scrutiny requires that legislation be substantially related to an important governmental objective, and strict scrutiny demands that the statute be both necessary and narrowly tailored to a compelling state interest.
​                    So, why does it matter how nine people evaluate the actions of another 535? Judicial scrutiny is not relegated to dusty law volumes or constitutional law students’ dog-eared flashcards; it continues to determine judicial decisions and subsequently, the scope of individual rights. Strict scrutiny can be bad news for both racial discrimination and affirmative action. Strict scrutiny can also affect birth control. Recently, judicial review has been nudged onto center stage regarding the recent hullaballoo over the rights of members of the LGBT community. In United States v. Windsor, the Second Circuit Court ascribed “quasi-suspect” status, but the Court declined to address the classification issue. Scholars argue that sexual orientation measures up to the “suspect” requirements, but would benefit more from “quasi-suspect” classification. However these critical constitutional questions play out, judicial scrutiny will be largely determinative of their outcomes.

[1] Marbury v. Madison, 5 U.S. 137, 137 (1803).
[2] Nebbia v. New York, 291 U.S. 502, 503 (1934).
[3] Craig v. Borden, 429 U.S. 190, 197 (1976).
[4] United States v. Carolene Products Company, 305 U.S. 144, 155 (1938).
[5] Korematsu v. United States, 323 U.S. 214, 216 (1944).

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