Strict scrutiny

Strict scrutiny is the highest level of judicial review. A law subjected to it is presumed unconstitutional unless the government proves the law is narrowly tailored to achieve a compelling governmental interest, usually meaning there is no less restrictive way to reach the same goal.

Courts apply strict scrutiny when a law classifies people by race or national origin under the Equal Protection Clause, restricts speech based on its content, or burdens rights deemed fundamental. The Religious Freedom Restoration Act imposes a version of the test on federal actions that substantially burden religious exercise. Few laws survive it, which led one scholar to call it "strict in theory, fatal in fact," though some, such as certain national-security measures, have passed.

Which level of scrutiny applies often decides a case before the merits are argued. Debates over affirmative action, religious liberty and speech regulation frequently turn on whether strict scrutiny or a lower standard such as intermediate scrutiny or rational basis review should govern. In Second Amendment cases the Supreme Court has rejected these tiers in favor of a history-based test.