Levels of scrutiny are one of the most important concepts in Constitutional Law on the bar exam. Many questions—especially in Equal Protection and Free Speech—turn entirely on applying the correct level of scrutiny.

If you understand how each level works, a large portion of Con Law becomes predictable.

What Are Levels of Scrutiny?

Levels of scrutiny are the standards courts use to evaluate whether government actions are constitutional.

There are three primary levels:

• Strict scrutiny
• Intermediate scrutiny
• Rational basis

Each level has a different test and level of difficulty for the government to satisfy.

Strict Scrutiny (Highest Standard)

Strict scrutiny is the most demanding level of review and is rarely satisfied.

It applies to:

• Race and national origin classifications
• Fundamental rights

To pass strict scrutiny, the government must show:

• A compelling government interest
• The law is narrowly tailored

Strict scrutiny is often described as “strict in theory, fatal in fact.”

Intermediate Scrutiny

Intermediate scrutiny applies to:

• Gender classifications

To pass intermediate scrutiny, the government must show:

• An important government interest
• The law is substantially related to that interest

This standard is less demanding than strict scrutiny but still requires meaningful justification.

Rational Basis (Lowest Standard)

Rational basis is the default level of review and is highly deferential to the government.

It applies to:

• All other classifications

To pass rational basis review, the government must show:

• A legitimate government interest
• The law is rationally related to that interest

Most laws survive rational basis review.

How to Apply Levels of Scrutiny on the Bar Exam

On the bar exam, the most important step is correctly identifying which level of scrutiny applies.

Once identified, the outcome is often predictable:

• Strict scrutiny → usually invalid
• Intermediate scrutiny → depends on the facts
• Rational basis → usually valid

Careful classification and structured analysis are key to getting these questions right.

This framework is essential for analyzing both Equal Protection and Free Speech questions on the bar exam.

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