Understanding Strict Scrutiny

It’s the highest level of judicial review in constitutional law. And when a court applies it, it’s sending a very clear message to the government:

You better have an extremely good reason for this law—and you’d better write it in the narrowest, least harmful way possible.

Strict scrutiny is triggered in two main situations:

First—when a law interferes with a fundamental right.

These are rights that are either explicitly written into the Constitution, or so deeply rooted in our legal tradition that they’re treated as fundamental.

We’re talking about rights like:

• Free speech under the First Amendment,

• The right to vote,

• The right to marry,

• The right to travel between states,

• And the right to make private decisions about family life—like raising children or using contraception.

Second—when a law classifies people based on race, national origin, or in some cases, alienage.

These are what we call suspect classifications, and they get heightened protection because of a long history of discrimination and political disadvantage.

Now, once strict scrutiny kicks in, the government has to clear a three-part test. And it’s a tough one.

Step one: The law must serve a compelling government interest.

Not just a good reason. A truly vital one—like protecting national security or stopping imminent violence.

Step two: The law must be narrowly tailored.

That means it can’t cast a wide net. It has to aim with laser precision at solving just the specific problem at hand.

Step three: The law must use the least restrictive means available.

If there’s a less burdensome way to accomplish the same goal, the government has to use it. No exceptions.

And who carries the burden of proof?

The government does.

If it can’t prove all three elements?

The law is struck down. Plain and simple.

This is why strict scrutiny has a reputation. Legal scholars say it’s “strict in theory, but fatal in fact.” Most laws that face it… don’t survive.

Here’s a quick flashcard-style recap to lock it in:

Strict scrutiny applies when a law:

• Interferes with a fundamental right,

• Or uses a suspect classification.

To survive, the law must:

• Serve a compelling interest,

• Be narrowly tailored,

• And use the least restrictive means.

Need a mnemonic? Try: C-N-L — Compelling, Narrow, Least.

And remember the phrase: “Can Never Last.”

Because most laws just can’t make it through.

Let’s anchor this with a mental image:

Picture a laser beam. That’s strict scrutiny.

It’s aimed directly at protecting a glowing treasure chest labeled FUNDAMENTAL RIGHTS.

If that beam veers off and zaps anything else?

Unconstitutional.

Let’s put it to the test with a quick hypothetical:

Imagine a city bans all political protests in public parks to prevent violence.

Is public safety compelling? Absolutely.

But banning all protests? That’s not narrowly tailored.

There are less restrictive ways—like requiring permits or adding security.

That law would almost certainly fail strict scrutiny.

Now, let’s ground this with a few real cases:

Loving v. Virginia, 1967.

Virginia banned interracial marriage.

The Court said: racial classification plus the fundamental right to marry? That’s strict scrutiny—and this law doesn’t come close to surviving.

Adarand Constructors v. Peña, 1995.

A federal program favored minority contractors.

Even well-intentioned racial preferences, the Court said, still trigger strict scrutiny. They must be narrowly tailored to a compelling purpose.

Skinner v. Oklahoma, 1942.

The state wanted to sterilize certain criminals.

The Court said: procreation is a fundamental right, and this law wasn’t carefully drawn. Struck down.

And finally: Reed v. Town of Gilbert, 2015.

A town treated signs differently based on their message—church events versus political campaigns.

The Court applied strict scrutiny to this content-based restriction on speech. And the law didn’t survive.

Now, I’ll leave you with three memorable quotes that sum it all up:

“Strict scrutiny leaves few survivors.”

— Justice Thurgood Marshall

“Under strict scrutiny, the government rarely wins.”

— Professor Erwin Chemerinsky

“It is strict in theory, but fatal in fact.”

— Gerald Gunther

So next time you hear a case is being reviewed under strict scrutiny, you’ll know:

That law is climbing the hardest hill in constitutional law.

Thanks for listening to Reading the Law.

If this helped clarify strict scrutiny for you, be sure to follow—and stay tuned for our next breakdown.

Until then—keep asking questions, and keep reading the law.