Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts

Abstract

A popular myth in American constitutional law is that the strict scrutiny standard of review applied to enforce rights such as free speech and equal protection is, in the famous words of Gerald Gunther, 'strict' in theory and fatal in fact. In recent years, however, this traditional understanding of strict scrutiny's inevitable deadliness has been challenged in high-profile cases such as Adarand Constructors v. Pena, where the Supreme Court expressed the wish to dispel the notion that strict scrutiny is 'strict' in theory, but fatal in fact, and Grutter v. Bollinger, where the Court turned wish into action and upheld an affirmative action policy under strict scrutiny. According to the Court in Grutter, when applying strict scrutiny, [c]ontext matters.

This Article offers a systematic empirical study of strict scrutiny in the federal courts. Reporting the results of a census of every strict scrutiny decision published by the district, circuit, and Supreme courts between 1990 and 2003, this study shows that strict scrutiny is far from the inevitably deadly test imagined by the Gunther myth and more closely resembles the context-sensitive tool described by O'Connor. Overall, 30% of all applications of strict scrutiny - nearly one in three - result in the challenged law being upheld. Rather than fatal in fact, strict scrutiny is survivable in fact, and is so across constitutional doctrine: 27% of suspect classifications, 22% of free speech restrictions, 24% of fundamental rights infringements, 33% of freedom of association burdens, and 59% of religious liberty burdens adjudicated under strict scrutiny survive.

Employing logistic regression, this Article shows that this high survival rate for a supposedly fatal standard of review is context-sensitive. Although political ideology and regional variation are found to have no significant impact on voting in strict scrutiny cases, courts are strongly influenced by the identity of the governmental actor. Most prominently, laws adopted by the federal government are far more likely to survive (50%) than those adopted by state (29%) or local (17%) governments. Surprisingly, however, strict scrutiny has become more fatal in the years since Adarand declared the standard to be survivable (from 40% in the early 1990s to 20% in the early 2000s).

I also offer an in-depth look at strict scrutiny cases within each area of law where that standard is found, showing which types of laws are more likely to be upheld than others even within discrete doctrines.

Keywords: Strict scrutiny in federal courts, consitutional law