strict scrutiny

Strict scrutiny is a form of judicial review that courts in the United States use to determine the constitutionality of government action that burdens a fundamental right or involves a suspect classification (including race, religion, national origin, and alienage). Strict scrutiny is the highest standard of review that a court will use to evaluate the constitutionality of government action, the other two standards being intermediate scrutiny and the rational basis test .

Once a court has determined that it applies, strict scrutiny starts from a presumption of unconstitutionality , shifting the burden of persuasion to the government, which must then produce evidence sufficient to show that its actions were constitutional. To that end, the government must show that its actions were “narrowly tailored” to further a “compelling government interest,” and that they were the “least restrictive means” to further that interest.

Although the terms are often conflated, the Supreme Court of the United States treats the “narrowly tailored” and “least restrictive means” elements as analytically distinct. In the First Amendment context, for example, the Court has said that content-neutral government regulations to the time, place, and manner of speech must be “narrowly tailored” but need not be the “least restrictive means.” See, e.g., Reed v. Town of Gilbert, 576 U.S. 155, 174 (2015) (Alito, J., concurring) (“Time, place, and manner restrictions ‘must be narrowly tailored to serve the government’s legitimate, content-neutral interests.’ But they need not meet the high standard imposed on viewpoint and content-based restrictions.” (citation omitted)).  A government regulation is “narrowly tailored” “[s]o long as the means chosen are not substantially broader than necessary to achieve the government's interest.” See: Ward v. Rock Against Racism, 491 U.S. 781, 800 (1989).

Notably, the Supreme Court has refused to endorse the application of strict scrutiny to gun regulations, leaving open the question of which precise standard of review courts must use to review challenges brought under the Second Amendment .

For more on strict scrutiny, see this Catholic University Law Review article , this University of Vermont Law Review article , and this University of Pittsburgh Law Review article .

[Last reviewed in September of 2024 by the Wex Definitions Team ]

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