Intermediate Scrutiny

Intermediate Scrutiny
Name	Intermediate Scrutiny
Type	Legal Standard
Jurisdiction	United States
Established	20th century
Notable cases	United States v. Virginia, Craig v. Boren, Brandenburg v. Ohio

Intermediate Scrutiny is a judicial standard of review developed in United States constitutional law to evaluate the constitutionality of statutes and governmental actions. It requires a closer fit between legislative means and governmental ends than rational basis review but is less stringent than strict scrutiny, balancing individual rights and governmental interests. The doctrine has evolved through decisions of the Supreme Court of the United States and has been applied across contexts involving Equal Protection Clause and First Amendment claims.

Background and Legal Origins

The doctrine traces to mid‑20th century litigation, arising from disputes adjudicated by the Supreme Court of the United States, the United States Court of Appeals for the Second Circuit, and state supreme courts in matters involving Fourteenth Amendment challenges, civil liberties, and regulatory statutes. Foundational influences include precedents from justices such as Earl Warren, William J. Brennan Jr., and Harry Blackmun, as courts sought a middle path between precedents like Brown v. Board of Education and earlier decisions invoking deferential review. Legislative responses and scholarly commentary from institutions such as the American Bar Association, Harvard Law School, and Yale Law School further shaped the test’s contours.

Application and Elements

Courts applying the standard typically examine whether a statute or regulation serves an important governmental interest and whether the means employed are substantially related to that interest, a test articulated in cases from panels including judges like John Paul Stevens and Sandra Day O'Connor. The inquiry often requires examination of evidentiary records assembled before adjudication in forums such as the United States District Court for the Southern District of New York or the United States Court of Appeals for the Ninth Circuit, and consideration of amici briefs from entities like the American Civil Liberties Union, National Rifle Association, and Lambda Legal. Appellate opinions analyze fit and tailoring, relying on precedent from landmark rulings authored by justices including Antonin Scalia and Ruth Bader Ginsburg.

Areas of Law and Typical Use

Intermediate scrutiny is most commonly invoked in cases involving sex‑based classifications, statutory distinctions in employment law, and certain commercial speech disputes in contexts litigated before tribunals such as the Supreme Court of the United States and the United States Court of Appeals for the D.C. Circuit. It has appeared in disputes concerning military policy adjudicated with reference to doctrines discussed in litigation involving the United States Department of Defense, in zoning controversies before state high courts like the California Supreme Court, and in regulatory challenges brought against agencies including the Federal Communications Commission and the Securities and Exchange Commission. The standard also surfaces in gender equality suits brought under the Equal Protection Clause and in sex‑discrimination cases litigated by parties including the Equal Employment Opportunity Commission.

Standards Comparison (Strict Scrutiny and Rational Basis)

Intermediate scrutiny sits between strict scrutiny, applied in cases involving classifications such as race and fundamental rights, with analysis shaped by precedents like Korematsu v. United States and Loving v. Virginia, and rational basis review, used in economic regulation contexts referenced in cases like United States v. Carolene Products Co. and Minnesota v. Cloverleaf Creamery Co.. Strict scrutiny requires a compelling governmental interest and narrow tailoring, often invoked in litigation featuring parties such as the NAACP Legal Defense Fund and adjudicated by the Supreme Court of the United States; rational basis requires merely a legitimate interest and a rational relation, seen in administrative law disputes involving agencies such as the Internal Revenue Service and the Department of Health and Human Services. Intermediate scrutiny demands an important interest and substantial relation, producing different outcomes in cases argued by advocates from organizations like the American Civil Liberties Union and the Cato Institute.

Criticisms and Debates

Scholars at institutions including Columbia Law School, Stanford Law School, and University of Chicago Law School debate whether intermediate scrutiny provides predictability or invites judicial activism; commentators such as Akhil Reed Amar, Cass Sunstein, and Erwin Chemerinsky have critiqued or defended its doctrinal flexibility. Critics from publications associated with think tanks like the Heritage Foundation and the Brennan Center for Justice argue over application consistency, while defenders highlight pragmatic adjudication in contentious areas involving litigants such as Planned Parenthood and Town of Greece plaintiffs. Empirical studies by research centers at Princeton University and New York University examine variance across circuits, prompting legislative responses in state capitols such as Sacramento and Austin.

Key Cases and Precedents

Notable judicial decisions shaping the standard include Craig v. Boren, where the Supreme Court of the United States articulated intermediate scrutiny for sex classifications; United States v. Virginia, which applied the standard to male‑only admissions at the Virginia Military Institute; and other influential rulings from panels including decisions by justices Anthony Kennedy and Clarence Thomas. Appellate decisions in circuits such as the Second Circuit and Ninth Circuit have refined tests in areas including First Amendment commercial speech and equal protection claims, producing jurisprudence cited in opinions from state courts like the Massachusetts Supreme Judicial Court and practitioners in firms such as WilmerHale and Covington & Burling.

Category:United States constitutional law