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Strict scrutiny is the highest standard of judicial review used by courts in the United States. Along with the lower standards of rational basis review and intermediate scrutiny, strict scrutiny is part of a hierarchy of standards the Court employs to weigh an asserted government interest against a constitutional right or policy that conflicts with the manner in which the interest is being pursued. Strict scrutiny is applied based on the constitutional conflict at issue, regardless of whether a law or action of the U.S. federal government, a state government, or a local municipality is at issue. It arises in two basic contexts: when a "fundamental" constitutional right is infringed, particularly those listed in the Bill of Rights; or when the government action involves the use of a "suspect classification" such as race or national origin that may render it void under the Equal Protection Clause.

To pass strict scrutiny, the law or policy must first be justified by a compelling governmental interest and second must be the least restrictive means for achieving that interest. Legal scholars, including judges and professors, often say that strict scrutiny is "strict in theory, fatal in fact," because most laws are struck down that are subject to that highest standard. The exception is the Supreme Court's widely criticized opinion in Korematsu v. United States, upholding as constitutional the internment of Japanese Americans during World War II.

De jure versus de facto discrimination

As applied in Korematsu, strict scrutiny was limited to instances of de jure discrimination, where a racial classification is written into the language of a statute. Justice Byron White, in Washington v. Davis (1976), also applies the test to instances where such an explicit classification is not made, but where disproportional impact is coupled with discriminatory intent. In doing so, he suggests that such intent elevates a seemingly de facto form of discrimination to a more invidious de jure form.

The Court's decision in Village of Arlington Heights v. Metropolitan Housing Development Corp. provided further definition to the concept of intent and clarified three particular areas in which intent becomes apparent, the presence of any of which demands the harsher equal protection test. If the impact is so “stark and dramatic" as to be unexplainable on non racial grounds as in Yick Wo v. Hopkins, the historical background suggests intent, or the legislative and administrative records show intent, the Court must use strict scrutiny.

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