Judicial review is the process by which the Supreme Court decides whether a law is in conflict with the Constitution. This process was created by the Supreme Court itself in the 1803 case of Marbury v. Madison. The case involved a dispute between the outgoing President Adams and incoming President Thomas Jefferson.

This highly consequential decision continues to be criticized today by some who argue that it improperly created inequality between the branches, thereby compromising checks and balances. While judicial review is surely an important function of the Supreme Court, it is true that it gives it power over the other two branches that is not matched by any corresponding powers they have over the Court.

The Court then expanded its right of judicial review in the landmark 1810 case of Fletcher v Peck, which was the first time the Court struck down a state law for being unconstitutional.

Levels of Scrutiny in Judicial Review

When government action is challenged on constitutional grounds, there are different levels of scrutiny that a court applies depending on who or what is impacted by that action. While scrutiny can be thought of as a spectrum, there are three general “levels.” Strict scrutiny, the highest level, applies to “suspect classes” (race, religion, and national origin) and to “fundamental rights” such as marriage or voting. Under strict scrutiny, the government has the burden of proof to show that there is a “compelling state interest” behind the policy and that the policy is “narrowly tailored” to achieve the result. This is an extremely high bar to pass.

Intermediate scrutiny (sometimes called ‘heightened’ or ‘elevated’ scrutiny) is in the middle. As with strict scrutiny, the burden of proof is on the government, but here they only need to prove that there is an “important government objective” and that the law or policy is “substantially related” to achieving that objective. Sex is currently subject to intermediate scrutiny, as well as sexual orientation. It is also frequently used in first amendment claims.

The proposed Equal Rights Amendment would shift sex into the ‘strict scrutiny’ category. Advocates for the ERA say it enshrines equal treatment for women into the constitution. However, there are risks that come along with this path. For example, Brown v. Board of Education ruled that the “separate but equal” doctrine, which permitted segregated schools, was unconstitutional discrimination based on race (which is a suspect class). If sex becomes a suspect class, then sex-segregation in schools, prisons, housing, or even sports could be in question.

Finally, at the far end of the spectrum, the lowest level of scrutiny is rational basis review. Under rational basis, the burden of proof is on the person challenging the law to prove that the government has no legitimate interest in the policy and that there is no reasonable, rational link between that interest and the policy which is being challenged. This is quite a low bar, and courts will uphold laws under this level of scrutiny if there is anything conceivably rational about it. This level of review is used for challenges to laws being “irrational” or “arbitrary,” and for discrimination based on age, wealth, felony status, or other non-suspect classifications.