RESEARCH STARTER

Judicial scrutiny

Judicial scrutiny is a legal framework used by courts, particularly the Supreme Court, to evaluate the constitutionality of government actions. This scrutiny involves applying different standards or levels of review, which help establish the expected outcomes of constitutional claims by parties involved in cases. There are three main levels of judicial scrutiny: ordinary scrutiny, intermediate scrutiny, and strict scrutiny.

Ordinary scrutiny is the least rigorous, where the burden of proof is on the individual challenging the government action, and the court presumes that the action is constitutional unless proven otherwise. Intermediate scrutiny is applied in cases that involve potential discrimination based on gender or illegitimacy, requiring the government to show that their actions serve important objectives. Strict scrutiny is the most stringent level, used in cases involving fundamental rights or racial discrimination, where the government must provide compelling reasons for its actions and demonstrate a close relationship to its objectives.

These varying levels aim to protect vulnerable groups and ensure government actions are justified, reflecting the judiciary's role in upholding constitutional rights while balancing state interests. Understanding these standards is crucial for comprehending how rights are protected or limited in different contexts.

Full Article

DEFINITION: Standard by which the Supreme Court evaluates the constitutionality of certain governmental actions. The three levels of judicial scrutiny are strict scrutiny, intermediate (heightened) scrutiny, and ordinary (minimum) scrutiny—also known as rational basis review.

SIGNIFICANCE: The Court’s consistent use of the three levels of judicial scrutiny enables institutions and citizens to feel comfortable that similar cases will be adjudicated in consistent ways.

The Supreme Court employs tests, or standards of review, with the aim of giving parties to a specific case some reasonable expectation as to the outcome of their particular constitutional claims. The use of standards permits each party to know, before the actual hearing, how the judiciary will probably approach the case and how the judiciary is likely to resolve any single issue. Variations in levels of review also signify the Court’s willingness to provide increased judicial protection, through more rigorous tests, for “discrete and insular minorities,” as it did in United States v. Carolene Products Co. (1938). These tests can take many forms and can be used in many different constitutional inquiries, but the most common tests involve the Court’s scrutinizing governmental activity.

The Three Levels

The Court uses three levels of judicial scrutiny. The lowest standard of review is defined as ordinary, or minimal, scrutiny. Here, the burden to demonstrate a constitutional violation falls on the individual, as the Court presumes the governmental action in question is constitutional. When applying an ordinary level of scrutiny, the Court employs the rational basis test, which asks whether the action is rationally related to a legitimate governmental objective. If the action is rationally related to such an objective, then the Court will reject the petitioner’s argument and the action will be deemed constitutional. The Court regularly uses ordinary scrutiny in cases involving economic regulation, such as Williamson v. Lee Optical Co. (1955), and ones in which the legislative classification does not warrant increased judicial protection, such as Massachusetts Board of Retirement v. Murgia (1976). In some equal protection cases—such as Romer v. Evans (1996) and United States v. Windsor (2013)—the Court has applied a more searching form of rational basis review, often called “rational basis with bite,” where the government’s justifications are more carefully examined.

An intermediate, or heightened, level of scrutiny is applied by the Court when a government action potentially discriminates based on gender or illegitimacy and, therefore, implicates the equal protection clause of the Fourteenth Amendment. The Court subjects those classifications to a more rigorous test because they trigger heightened equal-protection review. Because of the review’s heightened nature, the Court does not adopt the presumption of constitutionality standard found in the ordinary level of scrutiny, but instead mandates that the government demonstrate more than simply a reasonable purpose for the law. Intermediate review requires that the government identify an important governmental objective that is substantially furthered by that particular action.

Craig v. Boren (1976) is the principal case that formally introduced an intermediate level of scrutiny. In Craig, the Court addressed the issue of gender discrimination by reviewing an Oklahoma statute that prohibited the sale of 3.2 percent beer to women under eighteen and men under twenty-one. In an opinion written by Justice William J. Brennan, Jr., the Court ruled that under the newly instituted intermediate standard of review, the Oklahoma legislature could not satisfy the requirements set up by the test. The law treating men differently from women, Brennan argued, “did not serve important governmental objectives and [was not] substantially related to [the] achievement of those objectives.” The Court found that Oklahoma’s justification—that young men were more likely than young women to be arrested for drunk driving—was not sufficient to meet this standard. So, Craig became a landmark case in equal protection law and gender discrimination jurisprudence.

The third level of judicial scrutiny is the most difficult for the government to satisfy. Strict scrutiny refers to the standard the Court uses when assessing the constitutionality of governmental actions that may interfere with fundamental rights or discriminate on racial grounds. In the area of racial discrimination, the Court, in Korematsu v. United States (1944), noted that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny.” As such, the Court adopts a presumption of unconstitutionality when applying this most rigorous test; it asks the government to articulate a compelling reason for discriminating based on race or impinging on a fundamental right. Additionally, the Court insists that the government action be closely related to the state’s compelling objective. If the government is going to discriminate based on racial classifications or regulate one of the most fundamental freedoms, the Court demands that it have an extraordinarily important reason for doing so. Needless to say, very few governmental actions have ever satisfied the strict scrutiny test.

Although Korematsu has long been cited as an example of the application of strict scrutiny, the Supreme Court formally repudiated the decision in Trump v. Hawaii (2018). Writing for the majority, Chief Justice John Roberts declared that Korematsu “was gravely wrong the day it was decided,” effectively removing it from legitimate constitutional precedent.

The Court reaffirmed the force of strict scrutiny in Students for Fair Admissions v. President and Fellows of Harvard College (2023), stating that racial classifications must survive a demanding two-step inquiry requiring a compelling governmental interest and means sufficiently tailored to that interest. The decision underscored that strict scrutiny remains the governing framework for race-based state action, even as the Court has become increasingly skeptical of such classifications. Intermediate scrutiny has also featured prominently in recent technology-related First Amendment litigation. In TikTok v. Garland (2025), the Court stated that a content-neutral law affecting TikTok was subject to intermediate scrutiny. In Free Speech Coalition v. Paxton (2025), the Court held that Texas’s age-verification law for certain sexually explicit websites was also subject to intermediate scrutiny and upheld the law under that standard. These cases show how intermediate scrutiny continues to shape constitutional review in digital-media and internet-regulation disputes.

Some Guidelines

Distinctions between differing levels of review and the subsequent application of the actual tests are not always easy to define. The difference between an essential governmental objective and a legitimate one, or between closely related means and those that are merely substantially related is not always clear. However, the Court has provided some guidelines for applying the various tests. A compelling governmental interest is paramount, and a close relationship is one in which the Court is satisfied that there is no alternative, that the government has no option but to interfere with a fundamental right or discriminate based on race.

Korematsu v. United States (1944) provides the most cited example. The case involved the Court’s review of the constitutionality of President Franklin D. Roosevelt’s executive order which mandated that people of Japanese ancestry on the West Coast adhere to certain restrictions on their freedom—including curfews, detentions, and relocations—during part of World War II. In upholding the order, the Court claimed that a “pressing public necessity” may justify the violation of certain freedoms and discrimination against certain groups. Although the Court applied the strict scrutiny test, the government cited national security as a compelling reason for detaining Japanese Americans. Additionally, the government claimed that to maintain national security during such a major conflict, it had no alternative but to restrict the extension of some fundamental freedoms to a group of Americans. Korematsu is the only case in which the Court applied the strict scrutiny test to a racially based restriction and upheld the law.

In some areas, the Court uses different doctrinal frameworks rather than traditional means-end scrutiny. For example, in United States v. Rahimi (2024), the Court discussed means-end scrutiny as a mode used in other constitutional settings while addressing the Second Amendment through a different doctrinal approach.


Bibliography

, Erwin. “Breakdown in the Levels of Scrutiny.” Trial, vol. 33, Mar. 1997, pp. 70–71.

Coffin, Elizabeth Buroker. “Constitutional Law: Content-based Regulations on Speech: A Comparison of the Categorization and Balancing Approaches to Judicial Scrutiny.” University of Dayton Law Review, vol. 18, no. 2, article 10, 1 Jan. 1993, pp. 593–633. ecommons.udayton.edu/udlr/vol18/iss2/10. Accessed 9 Apr. 2026.

Devins, Neal, and Davison M. Douglas, editors. A Year at the Supreme Court. Duke UP, 2004.

“Intermediate Scrutiny.” Legal Information Institute, June 2023, www.law.cornell.edu/wex/intermediate_scrutiny. Accessed 9 Apr. 2026.

Levinson, Sanford V. “Tiers of Scrutiny--From Strict Through Rational Basis--And the Future of Interests: Commentary on Fiss and Linde.” Albany Law Review, vol. 55, 1992, p. 745, law.utexas.edu/faculty/publications/1992-Tiers-of-Scrutiny--From-Strict-Through-Rational-Basis--And-the-Future-of-Interests-Comment/. Accessed 6 Apr. 2026.

Mongkuo, Maurice Y. Race Preference Programs and the United States Supreme Court Strict Scrutiny Standard of Review. Edwin Mellen Press, 2005.

O’Brien, David M., and Gordon Silverstein. Constitutional Law and Politics, Volume Two: Civil Rights and Liberties. 12th ed., W. W. Norton, 2023.

“17-965 Trump v. Hawaii.”, Supreme Court of the United States, 26 June 2018, www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf. Accessed 6 Apr. 2026.

Snider, Brett. “Challenging Laws: 3 Levels of Scrutiny Explained.” FindLaw, 12 May 2020, www.findlaw.com/legalblogs/law-and-life/challenging-laws-3-levels-of-scrutiny-explained. Accessed 11 Apr. 2025.

“24-656 Tiktok Inc. v. Garland.” Supreme Court of the United States, 17 Jan. 2025, www.supremecourt.gov/opinions/24pdf/24-656_ca7d.pdf. Accessed 10 Apr. 2026.

“23-1122 Free Speech Coalition, Inc. v. Paxton.” Supreme Court of the United States, 27 June 2025, www.supremecourt.gov/opinions/24pdf/23-1122_3e04.pdf. Accessed 10 Apr. 2026.

“22-915 United States v. Rahimi.” Supreme Court of the United States, 21 June 2024, www.supremecourt.gov/opinions/23pdf/22-915_8o6b.pdf. Accessed 10 Apr. 2026.

“20-1199 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.” Supreme Court of the United States, 29 June 2023, www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf. Accessed 10 Apr. 2026.

Wexler, Jay D. “Defending the Middle Way: Intermediate Scrutiny as Judicial Minimalism.” George Washington Law Review, vol. 66, no. 2, Jan. 1998, p. 298, scholarship.law.bu.edu/faculty_scholarship/1629. Accessed 10 Apr. 2026.

Full Article

DEFINITION: Standard by which the Supreme Court evaluates the constitutionality of certain governmental actions. The three levels of judicial scrutiny are strict scrutiny, intermediate (heightened) scrutiny, and ordinary (minimum) scrutiny—also known as rational basis review.

SIGNIFICANCE: The Court’s consistent use of the three levels of judicial scrutiny enables institutions and citizens to feel comfortable that similar cases will be adjudicated in consistent ways.

The Supreme Court employs tests, or standards of review, with the aim of giving parties to a specific case some reasonable expectation as to the outcome of their particular constitutional claims. The use of standards permits each party to know, before the actual hearing, how the judiciary will probably approach the case and how the judiciary is likely to resolve any single issue. Variations in levels of review also signify the Court’s willingness to provide increased judicial protection, through more rigorous tests, for “discrete and insular minorities,” as it did in United States v. Carolene Products Co. (1938). These tests can take many forms and can be used in many different constitutional inquiries, but the most common tests involve the Court’s scrutinizing governmental activity.

The Three Levels

The Court uses three levels of judicial scrutiny. The lowest standard of review is defined as ordinary, or minimal, scrutiny. Here, the burden to demonstrate a constitutional violation falls on the individual, as the Court presumes the governmental action in question is constitutional. When applying an ordinary level of scrutiny, the Court employs the rational basis test, which asks whether the action is rationally related to a legitimate governmental objective. If the action is rationally related to such an objective, then the Court will reject the petitioner’s argument and the action will be deemed constitutional. The Court regularly uses ordinary scrutiny in cases involving economic regulation, such as Williamson v. Lee Optical Co. (1955), and ones in which the legislative classification does not warrant increased judicial protection, such as Massachusetts Board of Retirement v. Murgia (1976). In some equal protection cases—such as Romer v. Evans (1996) and United States v. Windsor (2013)—the Court has applied a more searching form of rational basis review, often called “rational basis with bite,” where the government’s justifications are more carefully examined.

An intermediate, or heightened, level of scrutiny is applied by the Court when a government action potentially discriminates based on gender or illegitimacy and, therefore, implicates the equal protection clause of the Fourteenth Amendment. The Court subjects those classifications to a more rigorous test because they trigger heightened equal-protection review. Because of the review’s heightened nature, the Court does not adopt the presumption of constitutionality standard found in the ordinary level of scrutiny, but instead mandates that the government demonstrate more than simply a reasonable purpose for the law. Intermediate review requires that the government identify an important governmental objective that is substantially furthered by that particular action.

Craig v. Boren (1976) is the principal case that formally introduced an intermediate level of scrutiny. In Craig, the Court addressed the issue of gender discrimination by reviewing an Oklahoma statute that prohibited the sale of 3.2 percent beer to women under eighteen and men under twenty-one. In an opinion written by Justice William J. Brennan, Jr., the Court ruled that under the newly instituted intermediate standard of review, the Oklahoma legislature could not satisfy the requirements set up by the test. The law treating men differently from women, Brennan argued, “did not serve important governmental objectives and [was not] substantially related to [the] achievement of those objectives.” The Court found that Oklahoma’s justification—that young men were more likely than young women to be arrested for drunk driving—was not sufficient to meet this standard. So, Craig became a landmark case in equal protection law and gender discrimination jurisprudence.

The third level of judicial scrutiny is the most difficult for the government to satisfy. Strict scrutiny refers to the standard the Court uses when assessing the constitutionality of governmental actions that may interfere with fundamental rights or discriminate on racial grounds. In the area of racial discrimination, the Court, in Korematsu v. United States (1944), noted that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny.” As such, the Court adopts a presumption of unconstitutionality when applying this most rigorous test; it asks the government to articulate a compelling reason for discriminating based on race or impinging on a fundamental right. Additionally, the Court insists that the government action be closely related to the state’s compelling objective. If the government is going to discriminate based on racial classifications or regulate one of the most fundamental freedoms, the Court demands that it have an extraordinarily important reason for doing so. Needless to say, very few governmental actions have ever satisfied the strict scrutiny test.

Although Korematsu has long been cited as an example of the application of strict scrutiny, the Supreme Court formally repudiated the decision in Trump v. Hawaii (2018). Writing for the majority, Chief Justice John Roberts declared that Korematsu “was gravely wrong the day it was decided,” effectively removing it from legitimate constitutional precedent.

The Court reaffirmed the force of strict scrutiny in Students for Fair Admissions v. President and Fellows of Harvard College (2023), stating that racial classifications must survive a demanding two-step inquiry requiring a compelling governmental interest and means sufficiently tailored to that interest. The decision underscored that strict scrutiny remains the governing framework for race-based state action, even as the Court has become increasingly skeptical of such classifications. Intermediate scrutiny has also featured prominently in recent technology-related First Amendment litigation. In TikTok v. Garland (2025), the Court stated that a content-neutral law affecting TikTok was subject to intermediate scrutiny. In Free Speech Coalition v. Paxton (2025), the Court held that Texas’s age-verification law for certain sexually explicit websites was also subject to intermediate scrutiny and upheld the law under that standard. These cases show how intermediate scrutiny continues to shape constitutional review in digital-media and internet-regulation disputes.

Some Guidelines

Distinctions between differing levels of review and the subsequent application of the actual tests are not always easy to define. The difference between an essential governmental objective and a legitimate one, or between closely related means and those that are merely substantially related is not always clear. However, the Court has provided some guidelines for applying the various tests. A compelling governmental interest is paramount, and a close relationship is one in which the Court is satisfied that there is no alternative, that the government has no option but to interfere with a fundamental right or discriminate based on race.

Korematsu v. United States (1944) provides the most cited example. The case involved the Court’s review of the constitutionality of President Franklin D. Roosevelt’s executive order which mandated that people of Japanese ancestry on the West Coast adhere to certain restrictions on their freedom—including curfews, detentions, and relocations—during part of World War II. In upholding the order, the Court claimed that a “pressing public necessity” may justify the violation of certain freedoms and discrimination against certain groups. Although the Court applied the strict scrutiny test, the government cited national security as a compelling reason for detaining Japanese Americans. Additionally, the government claimed that to maintain national security during such a major conflict, it had no alternative but to restrict the extension of some fundamental freedoms to a group of Americans. Korematsu is the only case in which the Court applied the strict scrutiny test to a racially based restriction and upheld the law.

In some areas, the Court uses different doctrinal frameworks rather than traditional means-end scrutiny. For example, in United States v. Rahimi (2024), the Court discussed means-end scrutiny as a mode used in other constitutional settings while addressing the Second Amendment through a different doctrinal approach.


Bibliography

, Erwin. “Breakdown in the Levels of Scrutiny.” Trial, vol. 33, Mar. 1997, pp. 70–71.

Coffin, Elizabeth Buroker. “Constitutional Law: Content-based Regulations on Speech: A Comparison of the Categorization and Balancing Approaches to Judicial Scrutiny.” University of Dayton Law Review, vol. 18, no. 2, article 10, 1 Jan. 1993, pp. 593–633. ecommons.udayton.edu/udlr/vol18/iss2/10. Accessed 9 Apr. 2026.

Devins, Neal, and Davison M. Douglas, editors. A Year at the Supreme Court. Duke UP, 2004.

“Intermediate Scrutiny.” Legal Information Institute, June 2023, www.law.cornell.edu/wex/intermediate_scrutiny. Accessed 9 Apr. 2026.

Levinson, Sanford V. “Tiers of Scrutiny--From Strict Through Rational Basis--And the Future of Interests: Commentary on Fiss and Linde.” Albany Law Review, vol. 55, 1992, p. 745, law.utexas.edu/faculty/publications/1992-Tiers-of-Scrutiny--From-Strict-Through-Rational-Basis--And-the-Future-of-Interests-Comment/. Accessed 6 Apr. 2026.

Mongkuo, Maurice Y. Race Preference Programs and the United States Supreme Court Strict Scrutiny Standard of Review. Edwin Mellen Press, 2005.

O’Brien, David M., and Gordon Silverstein. Constitutional Law and Politics, Volume Two: Civil Rights and Liberties. 12th ed., W. W. Norton, 2023.

“17-965 Trump v. Hawaii.”, Supreme Court of the United States, 26 June 2018, www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf. Accessed 6 Apr. 2026.

Snider, Brett. “Challenging Laws: 3 Levels of Scrutiny Explained.” FindLaw, 12 May 2020, www.findlaw.com/legalblogs/law-and-life/challenging-laws-3-levels-of-scrutiny-explained. Accessed 11 Apr. 2025.

“24-656 Tiktok Inc. v. Garland.” Supreme Court of the United States, 17 Jan. 2025, www.supremecourt.gov/opinions/24pdf/24-656_ca7d.pdf. Accessed 10 Apr. 2026.

“23-1122 Free Speech Coalition, Inc. v. Paxton.” Supreme Court of the United States, 27 June 2025, www.supremecourt.gov/opinions/24pdf/23-1122_3e04.pdf. Accessed 10 Apr. 2026.

“22-915 United States v. Rahimi.” Supreme Court of the United States, 21 June 2024, www.supremecourt.gov/opinions/23pdf/22-915_8o6b.pdf. Accessed 10 Apr. 2026.

“20-1199 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.” Supreme Court of the United States, 29 June 2023, www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf. Accessed 10 Apr. 2026.

Wexler, Jay D. “Defending the Middle Way: Intermediate Scrutiny as Judicial Minimalism.” George Washington Law Review, vol. 66, no. 2, Jan. 1998, p. 298, scholarship.law.bu.edu/faculty_scholarship/1629. Accessed 10 Apr. 2026.

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