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 (severe burdens or denials — but ordinary, nondiscriminatory election regulations such as voter-ID rules are reviewed under Anderson-Burdick balancing, not strict scrutiny), (2) Right to travel interstate, (3) Right to privacy (contraception, marriage — but NOT abortion, which is no longer a federal fundamental right post-Dobbs (2022)), (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 almost never narrowly tailored — rigid racial quotas in government programs are virtually per se invalid, and race-conscious remedies require SPECIFIC evidence of the government's OWN past discrimination, not generalized societal discrimination (City of Richmond v. Croson; Adarand). Here, the state could use race-neutral alternatives like outreach or location-based preferences. (In the separate higher-education ADMISSIONS context, Students for Fair Admissions v. Harvard (2023) went further still — overruling Grutter and ending race-conscious admissions, so race may no longer be used even as a diversity plus factor.)
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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