The levels of scrutiny are here to stay (for now at least)

Courtly Observations is a recurring series by Erwin Chemerinsky that focuses on what the Supreme Court’s decisions will mean for the law, for lawyers and lower courts, and for people’s lives.

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

In the recently concluded 2024-25 term, the Supreme Court repeatedly demonstrated how much the levels of scrutiny matter.

At least since 1937, when the Supreme Court wrote its famous footnote four in United States v. Carolene Products, analysis of individual liberties and equal protection has centered on what have been labeled “tiers of scrutiny.” The most basic tier is rational basis review. When applying rational basis review, the court gives great deference to the decisions of the political process, and will uphold a government action so long as it is rationally related to a legitimate government purpose. When there is an infringement of a fundamental right guaranteed by the constitution, or discrimination against a historically disadvantaged minority, courts are more suspicious of the government and require that it meet what is called strict scrutiny. This demands that the government prove that its action is necessary to achieve a compelling purpose. Finally, there is a middle tier of review, intermediate scrutiny, where the government action must be substantially related to an important government objective. Intermediate scrutiny has typically been applied in cases where someone has been discriminated against because of their sex or gender.

In recent years, there was speculation that the court might move away from the levels of scrutiny in constitutional analysis.  Three years ago, in New York State Rifle and Pistol Association v. Bruen, the Supreme Court expressly rejected using the levels of scrutiny in determining whether a government regulation of guns violated the Second Amendment. The court declared: “Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’” 

There was speculation as to whether this might be a precursor to the court abandoning the levels of scrutiny in other areas of constitutional law. Last year, in Vidal v. Elster, Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch, seemed to want to shift to a Bruen-type historical analysis for First Amendment free speech claims. The case involved an attempt to register a trademark, “Trump too small,” a phrase that refers to an exchange between Donald Trump and Marco Rubio during a Republican presidential debate in 2016. But the Lanham Act prohibits registration of a trademark that “[c]onsists of or comprises a name … identifying a particular living individual except by his written consent.” 

The Supreme Court rejected the constitutional challenge and upheld this provision and its application. Thomas wrote the opinion for the court, though in part it was for a majority and in part for a plurality. Thomas said that the Lanham Act provision was a content-based restriction on speech, but strict scrutiny was not required (as it typically would be). He based this conclusion on history. In reading Thomas’ opinion, there is the strong sense that he was analyzing the First Amendment in the same manner as he did for the Second Amendment in Bruen: focusing entirely on history and abandoning the traditional levels of scrutiny.

But this approach received significant pushback from a majority of the other justices. Even Justice Amy Coney Barrett, a self-avowed originalist who had been in the majority in Bruen, disagreed that history could provide the answer here. She wrote: “The Court claims that ‘history and tradition’ settle the constitutionality of the names clause, rendering it unnecessary to adopt a standard for gauging whether a content-based trademark registration restriction abridges the right to free speech. That is wrong.”

Many conservative scholars have argued that the court should abandon the levels of scrutiny and move to a wholly historical analysis. The levels of scrutiny are a form of balancing the competing interests. Under rational basis review, the weights on the scale favor the government; under strict scrutiny, they favor the challenger. But some conservatives oppose balancing tests as too flexible and giving too much discretion to judges.

It is striking that, nevertheless, so many of the cases during the 2024-25 term turned on the express invocation of the level of scrutiny used. What can be learned from them?

Rational basis review continues to mean great deference to the legislature. In United States v. Skrmetti – which upheld the constitutionality of the Tennessee law prohibiting certain medical treatments for transgender minors – the difference between the majority and the dissent was all about the level of scrutiny. Justice Sonia Sotomayor, in her dissenting opinion, argued that the court should use intermediate scrutiny on the grounds that the Tennessee law was sex discrimination and also discrimination based on gender identity. Chief Justice John Roberts’ majority opinion explicitly used rational basis review, concluding that there was not discrimination based on sex or gender identity. Although the court did not decide what level of scrutiny should be used when there is discrimination based on gender identity, three justices – Thomas, Alito, and Barrett – wrote separately to stress that they believe only rational basis review should be used for this type of discrimination.

As noted above, under rational basis review, a government action only need be rationally related to a legitimate government purpose. There is enormous deference to the political process. The court does not look to whether the actual purpose of the government is permissible, but rather any conceivable legitimate purpose is enough for the law to be upheld.

By contrast, under intermediate scrutiny the government action must be substantially related to an important purpose. The court insists that the government’s actual purpose be deemed important. In her dissenting opinion in Skrmetti, Sotomayor used intermediate scrutiny and wanted the court to closely examine whether the scientific and medical evidence justified the Tennessee law. But by using rational basis review, the court stressed deference to the Tennessee Legislature instead. Roberts concluded his opinion by saying that the issue is left “to the people, their elected representatives, and the democratic process.” Likewise, Thomas, in a concurring opinion, said: “Deference to legislatures, not experts, is particularly critical here.”

Skrmetti thus again shows how likely it is that the government will win if it can convince a court to use rational basis review.

Intermediate scrutiny means the government does not have to use the least restrictive alternative. As described above, under strict scrutiny, the government action must be necessary to achieve a compelling purpose. To prove that its action is “necessary,” the government must convince the court that no less restrictive alternative will suffice. By contrast, under intermediate scrutiny, the government is not required to use the least restrictive alternative.

Free Speech Coalition v. Paxton turned on exactly this distinction. The court, by a vote of 6-3, upheld a Texas law requiring websites to verify the ages of their users if more than one-third of their content is sexually explicit. Perhaps surprisingly given his opinion in Bruen, which appeared to explicitly reject using the levels of scrutiny, Thomas wrote the opinion for the court and used intermediate scrutiny. He wrote: “Applying our precedents, we hold that intermediate scrutiny applies … Any burden experienced by adults is therefore only incidental to the statute’s regulation of activity that is not protected by the First Amendment. That fact makes intermediate scrutiny the appropriate standard under our precedents.” As a result, he said, there was no requirement that the government use the least restrictive alternative.  

Justice Elena Kagan wrote for the dissenters and said “[t]he standard should be strict scrutiny” because the law is a content-based restriction on speech; whether the law applied depended on the content of the websites. The dissent would have struck down the Texas law on the ground that there are less restrictive ways to achieve the state’s goal of protecting children. She wrote: “Texas can of course take measures to prevent minors from viewing obscene-for-children speech. But if a scheme other than H. B. 1181 can just as well accomplish that objective and better protect adults’ First Amendment freedoms, then Texas should have to adopt it (or at least demonstrate some good reason not to).”

Requiring the government to use the least restrictive alternative imposes a very difficult burden for a law to be upheld. Paxton reaffirms that this requirement is not imposed on the government under intermediate scrutiny.

Strict scrutiny again usually means the government loses. In 1972, Professor Gerald Gunther famously said that strict scrutiny is “strict in theory, but fatal in fact.” In fact, in Paxton, Thomas in his majority opinion said “[i]n the First Amendment context, we have held only once that a law triggered but satisfied strict scrutiny,” citing the 2010 case of Holder v. Humanitarian Law Project. Thomas was wrong in that statement. The court also explicitly used strict scrutiny and upheld laws in cases such as Burson v. Freeman (upholding a state law prohibiting electioneering activity within 100 feet of a polling place), and Williams-Yulee v. The Florida Bar (upholding a state law prohibiting judicial candidates from personally soliciting or receiving campaign funds).

But certainly the government usually loses when the court chooses strict scrutiny. During the 2024-25 term, for example, the court used strict scrutiny in two religion cases that were decided, and the government lost in each. In Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission, the court unanimously reaffirmed that the government must meet strict scrutiny if it discriminates among religions. Wisconsin law provides an exemption from the state’s unemployment tax for a nonprofit organization “operated primarily for religious purposes.” Wisconsin denied this exemption to Catholic Charities, which provides social services and is separate from the Catholic Church.

In an opinion by Sotomayor, the court concluded that the Wisconsin law violated the establishment clause because it discriminated among religions. Catholic Charities was denied the exemption under Wisconsin law because it provided social services to Catholics and non-Catholics alike and because it did not attempt to proselytize or indoctrinate into the faith. But this would mean that religions that engaged in this behavior would receive the tax benefit. That, Sotomayor said, is discrimination among religions that had to meet strict scrutiny: “In short, as applied to petitioners by the Wisconsin Supreme Court, Wis. Stat. § 108.02(15)(h)(2) imposes a denominational preference by differentiating between religions based on theological choices.”

In Mahmoud v. Taylor, the court found that parents had a First Amendment right based on the free exercise of religion to notice and to opt their children out of instruction in public schools when material was inconsistent with their religious beliefs. Alito wrote for the court and used strict scrutiny in ruling for the parents. Sotomayor, in writing for the dissenters, disagreed that mere exposure to “themes ‘contrary to the religious principles’ that parents wish to instill in their children” was sufficient for an infringement of the free exercise of religion. She expressed great concern that it will cause “chaos” to create such a right. The court’s decision seems to mean that the government will need to meet strict scrutiny any time parents claim that exposure to material in public schools is inconsistent with their religious beliefs.

An important lesson from all of these cases is that speculation about the demise of the levels of scrutiny was unfounded, at least outside the Second Amendment. The choice of the level of scrutiny continues to matter greatly and often determines the outcome of a case.