Strict Judicial Scrutiny

Abstract

The history and practice of strict judicial scrutiny are widely misunderstood. Historically, the modern strict scrutiny formula did not emerge until the 1960s, when it took root simultaneously in a number of doctrinal areas. It did not clearly originate in race discrimination cases, as some have suggested, nor in free speech jurisprudence, as Justice Harlan once claimed. Although strict scrutiny is widely assumed to be “strict in theory, but fatal in fact,” judicial practice in applying it has been complex, even conflicted. There are at least three identifiable versions of strict scrutiny, all subsumed under the same label. The result is uncertainty and sometimes confusion about which version the U.S. Supreme Court will apply in which cases. Some of the confusion arises from the strict scrutiny test’s vague and ambiguous terms, which leave critical questions unanswered. Seeking answers to those questions through normative rather than doctrinal inquiry, this Article argues that the strict scrutiny test is best understood as mandating a proportionality inquiry. At least when challenged regulations would at best reduce risks or incidences of harm, rather than extirpate them completely, courts applying strict scrutiny must ask whether the benefits justify the costs in light of regulatory alternatives that would trench less deeply on constitutional rights but also be less effective in promoting their goals.