Con Law IThe Levels of Scrutiny

Choosing the Tier

The tier depends on what the law classifies or burdens: race, national origin and fundamental rights trigger strict scrutiny; sex and legitimacy intermediate; most economic and social laws rational basis; some areas use other tests instead, such as the Mathews balance for procedural due process.

Not started Jump to practice

You know the three tiers. The hardest step in practice comes first: deciding which tier applies. The answer depends on what the law classifies (for equal protection) or what right it burdens (for due process and specific rights), not on how fair or unfair the law seems.

Choose what the law classifies or burdens, and see the tier.
The usual sorting (details and exceptions come in Constitutional Law II).
Law classifies by or burdens…TierExample cases
Race or national originStrictKorematsu (1944), Loving (1967), Adarand (1995)
A fundamental right (voting, interstate travel, marriage; speech based on content)StrictHarper (1966), Reed v. Town of Gilbert (2015)
SexIntermediateCraig v. Boren (1976), United States v. Virginia (1996)
Birth outside marriage (legitimacy)IntermediateClark v. Jeter (1988)
Age, disability, wealth, most economic and social distinctionsRational basisCleburne (1985), Lee Optical (1955)

Why it works

Why tie the tier to the classification rather than to the law's fairness? Because the point of the tiers is to decide how much to trust the legislature before looking at the merits. Race classifications get strict scrutiny because the Fourteenth Amendment's core purpose was to end official racial discrimination; the Court has applied strict scrutiny to all racial classifications, including those meant to help. A judge who chose the tier by asking "Is this law unfair?" would be deciding the case first and the standard second.

Key idea

The tier depends on what the law classifies or burdens: race, national origin and fundamental rights trigger strict scrutiny; sex and legitimacy intermediate; most economic and social laws rational basis. Some areas use other tests instead of the tiers, such as the Mathews balance for procedural due process. Since 2022 the Court has judged Second Amendment and Establishment Clause cases by history and tradition rather than by the tiers.

Worked example: Sorting three laws

Which tier applies? (a) A state law sets a mandatory retirement age of 65 for state police. (b) A city ordinance gives contracts preferences based on the race of business owners. (c) A state law sets different ages for men and women to serve on juries.
  1. (a) Age: rational basis.
  2. (b) Race: strict scrutiny, even though the program is meant to help (Croson, 1989; Adarand, 1995).
  3. (c) Sex: intermediate scrutiny, with an exceedingly persuasive justification required.

Answer: (a) rational basis, (b) strict, (c) intermediate.

Worked example: When the tiers do not apply

A federal agency stops a person's disability benefits after reviewing medical reports, without first holding a hearing; a full hearing is available afterward. The person says due process required a hearing first. Which framework does the Court use?
  1. The claim is not that the law classifies anyone or burdens a fundamental right; it is about what procedures are owed before the government takes away a benefit.
  2. For that question the Court uses the balance from Mathews v. Eldridge (1976): the private interest at stake, the risk of error under the current procedures and the value of more safeguards, and the government's interest, including cost.
  3. In Mathews itself, the Court held that a hearing after the benefits stopped was enough.

Answer: A balancing test, not a tier.

Common mistake

Applying strict scrutiny to any law that seems unfair. First identify the classification or right; the tier follows from that, not from the law's wisdom. A harsh economic law still gets rational basis; a well-meant racial classification still gets strict scrutiny. Check: what does the law classify by, or which right does it burden?

Justices disagree about the framework itself. Some argue the tiers are judge-made and should give way to text and history in more areas; others argue that history-based tests are hard to apply and that the tiers give needed structure. Practice here asks which test applies, not which approach is better. The framework continues in Constitutional Law II, including the Second Amendment and the Establishment Clause tests.

This is an educational course, not legal advice.

Practice

Pass with 3 right answers, the last 2 in a row. Each right answer earns 3 XP.

Loading practice…

Builds on

Leads to

Sources and further reading

@teddyrookbook GitHub