About Intermediate Scrutiny

Relatively recently in United States Supreme Court history was the idea of levels of constitutional scrutiny formed and implemented. Currently, there are three levels of scrutiny: strict, intermediate, and rational basis.

Intermediate scrutiny is then what it’s name implies — the middle level where it is neither the harshest nor most lenient.  But what exactly that means, can lead to some confusion and some debate (more about this further down).

This technique of “intermediate” scrutiny permits us to evaluate the rationality of the legislative judgment with reference to well-settled constitutional principles.1

The constitutional law subjects where the three levels of scrutiny is used are:

  • Free Speech
  • Equal Protection
  • Guns (proposed “interest-balancing inquiry” instead of the traditional intermediate scrutiny)2
Levels of Constitutional ScrutinyAbout the levels

Initially the court developed the rational basis and strict scrutiny.  Only later did the court recognize the need for an intermediate level.3  All three levels are essentially abstract tests which function in the same manner: 1. deciding who or what is being impacted by the legislation (i.e. does it discriminate against a protected group, or is a fundamental right involved?); and then 2. using the corresponding judicial test to determine if the law is constitutional or not. Because the Constitution stays the same while society is ever-changing, these abstract tests are necessary when “evaluating whether the new restrictions that a changing society constantly imposes upon private conduct comport with” constitutional guarantees society has always afforded in the past.4

Strict scrutiny places the burden on the government to prove the law “furthers a compelling interest and is narrowly tailored to achieve that interest.”5 The private interests (non-governmental) are deemed so important, strict scrutiny places the burden on the government to justify its interest infringing on those private interests.  This is the toughest test to meet.

Intermediate scrutiny also places the burden on the government to prove the law is “substantially related to the achievement of an important governmental objective.”6 This works much like strict scrutiny, but the main differences are the government does not need to have as strong of an interest, and the law does not need to be narrowly tailored.

Rational basis places the burden on the individual to prove “if there is any reasonably conceivable state of facts that could provide a rational basis” for the law.7 The reason behind this approach is because the Constitution infers powers where Congress has plausible reasons for enacting legislation, and the judiciary should generally exercise restraint from intervention.  Under a rational basis review, statutes coming before the court have a strong presumption of validity.

criticisms

This system of levels of scrutiny is not without criticisms. Perhaps the biggest criticism is both when it is applied and how it is applied.  Even some members on the United States Supreme Court openly acknowledge the failures of the abstract test. “We have no established criterion for ‘intermediate scrutiny’ either, but essentially apply it when it seems like a good idea to load the dice.”8

  1. Plyler v. Doe, 457 US 202, 218 n.16 (1982).
  2. District of Columbia v. Heller, 128 S. Ct. 2783, 2852 (2008) (Breyer, J., dissenting).
  3. Maxwell L. Stearns, Scrutinizing Tiers.
  4. United States v. Virginia, 518 US 515, 568 (1996) (Scalia, J., dissenting).
  5. Citizens United v. Federal Election Com’n, 130 S. Ct. 876, 898 (2010).
  6. Adarand Constructors, Inc. v. Pena, 515 US 200, 220 (1995) (internal quotation marks omitted).
  7. FCC v. Beach Communications, Inc., 508 US 307, 313 (1993).
  8. United States v. Virginia, 518 US 515, 568 (1996) (Scalia, J., dissenting).