Strict scrutiny is a standard of judicial review that courts apply when evaluating government action that implicates a constitutional right. On The Bob Zadek Show, guests described it as the higher of the tiers of scrutiny used to test whether the government may do what it claims the power to do, contrasted with the rational basis review applied to most statutes.
The two tiers
Daniel Dew, Director of Legal Policy at the Pacific Legal Foundation, explained the basic framework in a January 2021 episode on executive emergency powers. Most of the time, he said, courts apply rational basis: whether there is any rational basis, any reason the legislature could give for doing this, and that is what is applied to most statutes. When a constitutional right is implicated — free speech, the right to worship as one wants — courts apply a higher level of scrutiny called strict scrutiny. Under that test, the government must have a compelling government interest, meaning the interest has to be really important, and the regulation must be narrowly tailored, meaning the government should be doing the bare minimum or as close as possible to the bare minimum to accomplish its goal without unnecessarily infringing on somebody’s right Emperor Newsom’s New Clothes (2021).
Dew illustrated the analysis with a client’s case. A nail salon client in Connecticut was subject to a governor’s order that allowed hair salons to open but not nail salons. The argument was that there was no rational reason to exclude nail salons while allowing hair salons to open if they adhered to the same standards and protocols. Applying strict scrutiny, Dew said, a court would ask whether the hair salon can open and adhere to those standards and keep people safe while the nail salon cannot, or whether people getting haircuts is a more compelling government interest than people getting their nails done Emperor Newsom’s New Clothes (2021).
Strict scrutiny and endangerment
In a September 2021 episode on vaccine mandates, Bob Levy described strict scrutiny as the principle in constitutional law that describes the hoops government has to jump through in order to justify regulations of fundamental rights, among them personal autonomy. He set out three aspects: the government must show a compelling need for the regulation, in that case the mandate; it must show the regulation is not going to cause any harm and will be effective in accomplishing its objective; and it must show there is no better way to do it without violating personal autonomy A Libertarian Legal Perspective on Vaccine Mandates (2021).
Levy then raised a prior difficulty: before reaching that test, there is a controversy in law about the extent to which it is appropriate to regulate activities that have not created any injury whatsoever — the issue of addressing past injury versus the possibility of future injury. Punishing aggressive acts that have already caused damage is routine, he said, but it is more complicated when government compels conduct, such as getting vaccinated, that might minimize or reduce harm that has not yet occurred. He called this area of the law endangerment, where it is difficult to apply a rights theory, and offered speed limits and nuclear power plant safety requirements as examples. The real question, he said, boils down to how much risk a person has to put up with before the government can regulate activities that are not harming anyone at the moment but might harm someone in the future. Because that question is very difficult to resolve based on rights, he said, we sometimes have to look to cost-benefit tradeoffs and utilitarian calculations, which is where safety, efficacy, and reasonable alternatives come into question A Libertarian Legal Perspective on Vaccine Mandates (2021).
Levels of scrutiny under equal protection
In a January 2023 episode on California legislation governing fast-food franchising, Richard Epstein addressed a possible equal protection challenge to a statute that treats different restaurants differently by size and number of units. He said that under the American constitutional framework on the equal protection clause, if the classification is about race, the level of scrutiny is very strict; if it is about sex, at the very least intermediate scrutiny applies. But when the classification concerns economic affairs, the level of scrutiny is so low that in many cases it is just a joke to say that a violation of the Equal Protection Clause could ever be found insofar as it relates to differences between different kinds of economic organizations California Passes the Worst Piece of Legislation Since AB 5 (2023).
Across episodes
Two episodes — the January 2021 discussion with Daniel Dew and the September 2021 discussion with Bob Levy — treat strict scrutiny directly, and a third, the January 2023 episode with Richard Epstein, treats the tiers of scrutiny in the equal protection context. The excerpts show no development in the concept itself between the earlier and later treatments: Dew and Levy each describe the compelling-interest and narrow-tailoring requirements, while Epstein addresses the low scrutiny applied to economic classifications. What changes across the episodes is the subject matter to which the standard is applied — pandemic executive orders, vaccine mandates, and franchise regulation — not the standard.
What the sources do not cover
The excerpts do not state the origins of strict scrutiny, the cases that established it, or which amendment or amendments it is tied to. They do not give the full holding of any case, and the only case name mentioned in connection with the topic, Kelo v. City of New London, appears in a topic list without discussion. The excerpts also do not resolve whether strict scrutiny should apply to the pandemic-era measures the guests discussed; Dew said courts were becoming a little more skeptical as the pandemic continued, but the sources do not report how any challenge was decided.