Scrutiny problems are easier when you treat the level of review as a trigger-and-test exercise. Spot the classification or right first; then the standard and burden usually follow.
Scrutiny problems are easier when you treat the level of review as a trigger-and-test exercise. Spot the classification or right first; then the standard and burden usually follow.
Strict scrutiny is the most demanding level of judicial review and applies when the government classifies people based on a SUSPECT CLASS or burdens a FUNDAMENTAL RIGHT.
SUSPECT CLASSES: Race, national origin, and alienage (for state laws) have historically been subject to discrimination and are considered "immutable" characteristics.
FUNDAMENTAL RIGHTS include: (1) Right to vote, (2) Right to travel interstate, (3) Right to privacy (contraception, marriage, abortion under certain standards), (4) First Amendment freedoms.
WHY DOES GOVERNMENT ALMOST ALWAYS LOSE? The test requires the law to be NECESSARY (not just helpful) to achieve a COMPELLING interest (not just legitimate). Courts will also look for LESS RESTRICTIVE ALTERNATIVES. If ANY less restrictive way exists to achieve the goal, the law fails.
KEY DISTINCTION: "Necessary" means the law must be the LEAST restrictive means. It's not enough that the law helps achieve the goal—it must be essential.
REMEMBER: When you see racial classifications, even "benign" ones like affirmative action, apply strict scrutiny. The Court has held that ALL racial classifications are suspect, regardless of which race is burdened.
HYPO: State X passes a law requiring all government contractors to have workforces that are at least 30% racial minorities to promote diversity.
ANALYSIS: This law uses a racial classification (it treats people differently based on race). Apply STRICT SCRUTINY.
Is there a COMPELLING interest? Remedying past discrimination can be compelling, but general "diversity" is weaker. The state would need to show specific evidence of past discrimination in government contracting.
Is the law NECESSARY? A rigid 30% quota is likely NOT the least restrictive means. The Court has upheld race-conscious policies that use race as ONE factor (like in Grutter) but struck down rigid quotas (Bakke). Here, the state could use race-neutral alternatives like outreach or location-based preferences.
LIKELY RESULT: The law would probably FAIL strict scrutiny because it's not narrowly tailored—there are less restrictive alternatives to a rigid quota.
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Intermediate scrutiny is the middle tier, most commonly applied to GENDER classifications and classifications based on LEGITIMACY (whether parents were married).
WHY NOT STRICT SCRUTINY FOR GENDER? The Court has recognized that while sex discrimination has existed, there ARE biological differences between sexes that can justify some differential treatment—unlike race, where there's no justification for different treatment.
THE VMI CASE (United States v. Virginia): While the formal test remains "substantially related to an important interest," Justice Ginsburg's majority opinion required an "exceedingly persuasive justification" for gender classifications. This suggests the actual standard may be closer to strict scrutiny in practice.
IMPORTANT: The government cannot rely on STEREOTYPES or GENERALIZATIONS about men and women. The justification must be genuine, not hypothesized or invented post hoc.
LEGITIMACY: Children born outside marriage are a quasi-suspect class. Laws treating them differently must survive intermediate scrutiny.
COMMERCIAL SPEECH: Advertising gets intermediate scrutiny under Central Hudson. The government can regulate false/misleading commercial speech and speech about illegal activity, but truthful commercial speech about lawful activity gets protection.
HYPO: A state law provides that in custody disputes, mothers are presumed to be the better parent for children under age 5.
ANALYSIS: This law classifies based on GENDER. Apply INTERMEDIATE SCRUTINY.
Is there an IMPORTANT government interest? Yes—the best interests of children is an important interest.
Is the presumption SUBSTANTIALLY RELATED to that interest? NO. This presumption relies on STEREOTYPES about women being natural caregivers and men being less capable parents. The Supreme Court has rejected such generalizations.
While there may be cases where mothers are better suited for young children, there are also cases where fathers are better. The law uses gender as a proxy when it should use an individualized assessment.
RESULT: The law FAILS intermediate scrutiny because it relies on gender stereotypes rather than actual parenting ability. The state should use individualized "best interests" analysis instead.
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Rational basis is the DEFAULT level of review and is extremely deferential to the government. Most laws get rational basis review.
WHY DOES GOVERNMENT ALMOST ALWAYS WIN? 1. LEGITIMATE interest is a very low bar—almost any non-arbitrary purpose counts 2. RATIONALLY RELATED just means there's some reasonable connection—doesn't have to be the best or most efficient way 3. The court will even HYPOTHESIZE reasons the legislature MIGHT have had 4. The CHALLENGER bears the burden of proving there's NO rational basis
WHAT QUALIFIES AS LEGITIMATE? Public health, safety, morals, general welfare, administrative convenience, economic regulation—almost anything.
WHAT'S NOT LEGITIMATE? Bare desire to harm an unpopular group, pure animus (but this triggers "with bite" review).
THE RATIONAL BASIS "TRICK": Courts will uphold laws even if the actual reason was improper, as long as ANY conceivable legitimate reason exists. The law can be over-inclusive or under-inclusive—perfect fit not required.
WHEN RATIONAL BASIS FAILS: Very rare. Usually only when the law is completely arbitrary or motivated purely by animus with no conceivable legitimate purpose.
HYPO: A city ordinance requires food truck operators to be licensed, pay a $500 annual fee, and pass a health inspection, but traditional restaurants only need health inspections.
ANALYSIS: This is economic regulation that doesn't involve a suspect class or fundamental right. Apply RATIONAL BASIS.
Is there a LEGITIMATE government interest? Yes—several: public health, traffic safety, fair competition, tax collection.
Is the law RATIONALLY RELATED? Yes. The city could reasonably believe that: - Food trucks pose unique health challenges (mobile = harder to inspect regularly) - Licensing helps track mobile vendors for health emergencies - The fee offsets costs of additional enforcement - Different rules for different business models is reasonable
Even if food trucks argue they're SAFER than restaurants, rational basis doesn't require the legislature to be RIGHT—just that there's a rational basis for the belief.
The law is OVER-INCLUSIVE (some safe food trucks pay the fee) and UNDER-INCLUSIVE (some risky restaurants don't)—but that's OK under rational basis.
RESULT: The law SURVIVES rational basis review. The challenger cannot prove there's NO rational basis for treating food trucks differently.
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Rational basis "with bite" (also called "rational basis with teeth") is an unofficial heightened version of rational basis that some scholars identify in certain Supreme Court decisions.
KEY CASES: 1. ROMER v. EVANS (1996): Colorado constitutional amendment prohibited any laws protecting gays and lesbians from discrimination. The Court struck it down under "rational basis" but clearly applied more scrutiny—finding the law was motivated by "animus" toward an unpopular group.
2. CITY OF CLEBURNE (1985): City denied permit for group home for intellectually disabled. Court said it was rational basis review but then carefully examined (and rejected) each of the city's justifications.
3. U.S. DEPT OF AGRICULTURE v. MORENO (1973): "A bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."
WHAT TRIGGERS "WITH BITE" REVIEW? - Evidence of animus or hostility toward a group - Law that seems designed to disadvantage unpopular minority - Stated justifications don't hold up to scrutiny - Unusually broad disability imposed
HOW TO SPOT IT ON THE EXAM: If a fact pattern involves a law targeting an unpopular group with weak justifications, discuss how the Court might apply more rigorous rational basis review even without officially applying heightened scrutiny.
HYPO: A city passes an ordinance prohibiting "any residential facility housing more than 5 unrelated persons" but exempts fraternities, sororities, and nursing homes. A group home for recovering addicts is denied a permit under this law.
ANALYSIS: Disability (addiction) traditionally gets rational basis. BUT this might warrant rational basis "with bite."
RED FLAGS suggesting animus: - The EXEMPTIONS are telling—fraternities can have 50 people, but 6 recovering addicts cannot - The ordinance was passed right after the group home was proposed - City council minutes show neighbors' fears about "those people" - The 5-person limit seems arbitrary and targeted
EXAMINE THE STATED JUSTIFICATIONS: - "Traffic concerns" → But fraternities with 50 people are exempt? - "Property values" → This is often a proxy for prejudice - "Character of neighborhood" → What does this mean?
Under REGULAR rational basis, these justifications might survive. Under "WITH BITE" analysis (like in Cleburne), the Court would note the exemptions undermine every justification.
RESULT: If the court applies rational basis "with bite," the law likely FAILS because the exemptions reveal the true purpose is animus toward recovering addicts, not legitimate zoning concerns.
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Ask what the government is classifying or burdening. Suspect classes and fundamental rights point to strict scrutiny, quasi-suspect classes point to intermediate scrutiny, and most other regulations get rational basis.
Because most challenged laws receive rational-basis review, and the test is highly deferential unless the facts suggest animus or irrational targeting.