In the recent Supreme Court term, the enduring significance of levels of scrutiny in constitutional law was reinforced, despite previous speculation about their potential decline. The Court has long used tiers of scrutiny, ranging from rational basis review to strict scrutiny, to assess government actions affecting individual liberties and equal protection issues. This framework stemmed from a 1937 ruling and has been pivotal ever since.
Historically, rational basis review offers the government substantial leeway, with actions upheld if rationally related to legitimate purposes. Conversely, strict scrutiny is applied when fundamental rights or cases of discrimination against marginalized groups are at stake, often resulting in government losses as actions must meet a compelling governmental purpose. Intermediate scrutiny, falling between the two, requires actions to be substantially related to important governmental objectives and is often applied in gender discrimination cases.
Recent cases indicated a possible shift away from this traditional approach. In 2022, New York State Rifle and Pistol Association v. Bruen rejected levels of scrutiny for the Second Amendment, favoring a historical analysis. Another case, Vidal v. Elster, suggested a similar approach for First Amendment claims. However, a majority of justices resisted such a move, even among originalist members like Justice Amy Coney Barrett.
During the 2024-25 term, traditional scrutiny levels prevailed. For instance, United States v. Skrmetti upheld Tennessee’s restrictions on medical treatments for transgender minors using rational basis review. Chief Justice John Roberts emphasized legislative deference over expert opinion, echoing a sentiment shared by Justice Clarence Thomas. Likewise, Free Speech Coalition v. Paxton saw the Court apply intermediate scrutiny in upholding a Texas statute that required age verification on certain websites. Both cases underscored the decisive impact of selected scrutiny levels.
Strict scrutiny continues to pose a formidable challenge for government actions, as seen in Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission and Mahmoud v. Taylor. Both cases utilized this most rigorous level of scrutiny, leading to decisions against governmental positions on religious grounds.
While recent jurisprudence suggested a potential shift in judicial analysis towards a historical perspective, the latest term indicates that levels of scrutiny remain well-entrenched across constitutional law, despite exceptions like the Second Amendment. Their selection is crucial and often decisive in case outcomes, challenging the notion of their diminishing relevance.
For those interested in a deeper exploration of these recent developments and their implications, the full analysis by Erwin Chemerinsky on SCOTUSblog provides an insightful overview.