Judicial review: tiers of scrutiny

Question 1

Strict scrutiny

Answer 1

The standard: Whether the law is necessary for a compelling government interest.

Strict scrutiny implicitly requires least restrictive means.

When strict scrutiny applies, the government bears the burden of proving that the interest is compelling and the law is necessary to that interest.

Strict scrutiny applies when there is a suspect classification or a fundamental right.

In First Amendment, strict scrutiny applies to content-based regulations of speech.

Question 2

Intermediate scrutiny

Answer 2

The standard: Whether the law is substantially related to an important government interest.

Intermediate scrutiny applies to classifications based on legitimacy and gender.

Question 3

Rational basis

Answer 3

The standard: Whether the law is rationally related to a legitimate government interest.

It is not required that there is actually a link between the means selected and a legitimate objective. The legislature need only have a reasonable belief that there is a link.

The challenger bears the burden of proof.

Rational basis applies to all cases where the other tiers of scrutiny do not.

Question 4

Rational basis “with teeth”

Answer 4

Whereas rational basis is generally deferential, the Court applied it in Lawrence and Windsor to strike down laws discriminating on sexual orientation as irrational.

The Court reasoned that the laws were not supported by reasons other than mere prejudice.

Question 5

Speech: injunction on activities conducted in a public or designated public forum

Answer 5

A content-neutral injunction must be no more burdensome than necessary to achieve an important governmental interest.

Question 6

Speech: time, place, and manner regulations

Answer 6

The restriction must:

(1) Be content neutral;
(2) Be narrowly tailored to serve a significant governmental interest; and
(3) Leave open ample alternative channels for communication of the information.

Question 7

Speech: nonpublic forums

Answer 7

The restriction must be viewpoint neutral and rationally related to a legitimate governmental interest.

Question 8

Federal restrictions on residential aliens

Answer 8

The restriction must not be arbitrary or unreasonable.

Question 9

Speech: government employees

Answer 9

When a public employee is speaking about a matter of public concern as a citizen rather than as employee, the First Amendment interest of the employee must be balanced against the interest of the state, as an employer, in effective and efficient management of its internal affairs.

Question 10

Speech: expressive conduct

Answer 10

Government regulation of expressive conduct is upheld if:

i) The regulation is within the government’s power to enact, e.g., through a local government’s police power;
ii) The regulation furthers an important government interest;
iii) The government interest is unrelated to the suppression of ideas; and
iv) The burden on speech is no greater than necessary.

Question 11

Speech: commercial expression

Answer 11

Commercial speech is entitled to less constitutional protection than other forms of speech.

A restriction on commercial speech is subject to a form of intermediate judicial scrutiny, requiring the government to show that:

(1) the restriction directly advances an important or substantial government interest; and
(2) the restriction is not substantially more extensive than necessary to protect that interest.