What is the medium level of scrutiny sometimes called heightened scrutiny? 2024

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Exacting scrutiny requires disclosure regimes to be ‘narrowly tailored’ but not ‘least restrictive means’

Exacting scrutiny appears to be closer to strict scrutiny than the other two forms. Justice Thurgood Marshall initially used the term in his dissenting opinion in San Antonio Independent School Dist. v. Rodriguez (1973), a case involving Texas’ system that disproportionally funded different school districts. Marshall wrote: “This Court has frequently recognized that discrimination on the basis of wealth may create a classification of a suspect character and thereby call for exacting judicial scrutiny.”

The Supreme Court used the term in a majority opinion for the first time in Buckley v. Valeo (1976), examining the constitutionality of various provisions of the Finance Election Campaign Act of 1971. In a per curiam opinion, the majority wrote that “the constitutionality [of a provision of the FECA] turns on whether the governmental interests advanced in its support satisfy the exacting scrutiny applicable to limitations on core First Amendment rights of political expression.”

The court’s latest iteration of exacting scrutiny occurred in Americans for Prosperity Foundation v. Bonta (2021), a case involving a California law that compelled the disclosure of those who donated to charities. The court clarified that exacting scrutiny is the First Amendment standard for cases involving compelled disclosure requirements. The court further explained that “[w]hile exacting scrutiny does not require that disclosure regimes be the least restrictive means of achieving their ends, it does require that they be narrowly tailored to the government’s asserted interest.”

The court thus explained that under exacting scrutiny, the governmental regulation must be narrowly tailored but need not be the least speech restrictive means available.

Some consider exacting scrutiny more flexible for courts

Confusion remains as to what exactly is exacting scrutiny. Some posit that it is somewhere between strict and intermediate scrutiny. Others view it as synonymous with strict scrutiny. Still others view it as a type of strict scrutiny. 

Legal scholar R. George Wright views exacting scrutiny as a unique form of constitutional review with potential for giving courts greater flexibility, writing: “The more general point is that on its own terms, exacting scrutiny offers greater built-in, formal, legitimate adaptability, or inherent flexibility, than does strict scrutiny, or than standard fixed intermediate scrutiny, or than any version of minimum scrutiny.”

This article was published in July, 2021. David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics.  

Courts come up with guidelines to help make determinations. When it comes to reviewing whether a government action (often a law or a regulation) violates the Constitution, a court first chooses a Level of Scrutiny.

Determining a Level of Scrutiny

The court must determine whether it will be skeptical of government action, or be less nit-picky. That depends on the sensitivity of the issue. Certain liberties are more highly protected than others. Certain classes of people are more highly protected than others. These factors raise suspicion.

The court will evaluate various factors that are likely to raise suspicion to determine the level of scrutiny.

Spectrum

You can consider the levels of scrutiny as existing on a spectrum: where Rational-Basis Review is at one end and Strict Scrutiny is at the other.

Our infographic outlines the three most common points on the spectrum (Rational-Basis, Intermediate Scrutiny, and Strict Scrutiny). The Supreme Court has found the following situations to correspond to these levels of scrutiny.

Rational-Basis Review

The Supreme Court came up with Rational-Basis Review in Nebbia v. New York (1934). The NY government had decided to regulate the prices of dairy (setting a minimum retail price). Nebbia, a store owner, violated the law and challenged that his conviction was unfair. The Due Process Clause in the Constitution, Nebbia said, protected him against unfair or unreasonable regulatory power.

In denying Nebbia of his claim, the Supreme Court said the government has the right to create general restrictions on private conduct for the purpose of regulating the economy, so long as the government action is not “arbitrary, discriminatory, or demonstrably irrelevant” to the action regulated.

This case did not deserve any higher level of scrutiny because it did not involve a particularly sensitive issue, like free speech or discrimination against someone in a protected class. It was, in the Court’s opinion, just regular government regulation, and it only had to be reasonable.

Strict Scrutiny

Strict Scrutiny is at the opposite end of the spectrum. The Supreme Court has declared government regulation should be scrutinized very strictly when it infringes on a protected liberty (like procreation or marriage) or a protection action (like political speech), or when it unfairly discriminates against a protected class (like race or national origin).

Skinner v. Oklahoma (1942)  was an early case in which the Court decided the harshest review (strict scrutiny) was appropriate. Oklahoma had passed a law allowing the state to sterilize a person who was convicted three or more times of a “felony of moral turpitude.” The Court said the act, intending to deprive an individual of one of the most basic liberties – “a right which is basic to the perpetuation of a race” – deserved “strict scrutiny.” The Court had not yet adopted the formal characterization of the standard that courts use today (reviewing to ensure the law is “narrowly tailored to achieve a compelling government interest”).

A well-known case in which the Supreme Court applied Strict Scrutiny and made the rare ruling in favor of the government is Korematsu v. United States (1944). During a state of war with Japan, the U.S. government had issued an Executive Order that all Japanese must be excluded from certain sensitive areas. One of them was San Leandro, California, where Korematsu lived. Of Japanese descent, Korematsu was convicted for refusing to leave. He challenged the law as a violation of his Constitutional liberty rights. The Court admitted that classifications based on race had to satisfy the most “rigid scrutiny” (strict scrutiny) but said the “circumstances of direst emergency and peril” justified the action. Korematsu is known today as an “ugly” mark of our nation’s past, but it has never been explicitly overruled. See this article in Politico connecting the case to the case over Trump’s Travel Ban. And one in the Washington Post written by Korematsu’s daughter.

During the civil rights era and through today, the Supreme Court has applied Strict Scrutiny to government actions that classify people based on race. For example, in Loving v. Virginia (1967), the Supreme Court applied Strict Scrutiny to strike down Virginia’s law banning interracial marriage.

Intermediate Scrutiny

Government classifications based on gender deserve a moderate level of scrutiny (“quasi-suspect classifications”). Ironically enough, the standard was created in a case bought by a male against an Oklahoma law allowing females to purchase alcohol at a younger age (18) than it allowed males (21). In Craig v. Boren (1976), the Supreme Court said the law did not withstand “intermediate scrutiny.”

Restrictions on certain types of speech that are regarded as less expressive than political speech (like commercial speech) also get intermediate scrutiny. The Supreme Court will be hearing NIFLA v. Becerra this term, a case in which the appeals court applied intermediate scrutiny to a California law requiring anti-abortion clinics to give notice that abortions are available elsewhere. NIFLA will argue to the Supreme Court that the law deserves Strict Scrutiny.

More information

See this report on Levels of Scrutiny Under the Equal Protection Clause from the University of Missouri, Kansas City.

Levels of Scrutiny

• March 6, 2018
• Mariam Morshedi

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