Threshold questions come before the merits
Standing comes before merits, always.
Levels of scrutiny drive everything after that
Rational basis, intermediate scrutiny, and strict scrutiny each ask a different question and place the burden on a different party — misidentifying which level applies to a given classification or right changes the entire analysis that follows, not just one sentence of it.
Equal protection and due process both hinge on this same scrutiny-selection step, which is why building one reliable method for picking the correct level, and defending that choice explicitly in your answer, matters more in this course than in almost any other 1L subject.
Standing and the case-or-controversy limit
Article III, Section 2 extends the federal judicial power to listed cases and controversies. Cornell's Legal Information Institute says federal courts have constitutional authority to resolve only actual disputes. It sets out the three-part standing test from Lujan v. Defenders of Wildlife. The plaintiff needs an injury in fact that is concrete and particularized and actual or imminent. There must be a causal connection between the injury and the conduct challenged. It must be likely that a favorable decision will redress the injury. That test has three parts.
Standing is a threshold question you answer before the merits. Threshold first, merits second.
The three levels of scrutiny in that source
Strict scrutiny applies to government action that burdens a fundamental right or involves a suspect classification such as race, religion, national origin or alienage. It starts from a presumption of unconstitutionality and puts the burden of persuasion on the government. The government must show the action is narrowly tailored to a compelling interest and uses the least restrictive means. The burden rests on the government.
Intermediate scrutiny requires an important government interest and means substantially related to it, and is used for gender classifications. The rational basis test requires a legitimate state interest and a rational connection between means and goals. It is generally used where no fundamental right or suspect classification is at issue. The Fourteenth Amendment's equal protection clause is where many of these cases arise. Name the level of scrutiny.
| Level | Usually applies to | What the government must show |
|---|---|---|
| Rational basis | Ordinary economic and social legislation, and classifications that are not suspect or quasi-suspect | The law is rationally related to a legitimate government interest; the challenger carries the burden |
| Intermediate | Sex-based classifications | The law serves an important government interest and is substantially related to it |
| Strict | Race, national origin and alienage classifications, and laws burdening fundamental rights | The law is necessary to a compelling government interest and narrowly tailored; the government carries the burden |
Common questions
What is the federal standing test?+
Cornell describes the Lujan test: injury in fact that is concrete and particularized and actual or imminent, causation, and redressability.
What does Article III limit federal courts to?+
Cases and controversies. Cornell says federal courts only have constitutional authority to resolve actual disputes, not to address displeasure with a government action.
When does strict scrutiny apply?+
When government action burdens a fundamental right or involves a suspect classification such as race, religion, national origin or alienage.
Who bears the burden under strict scrutiny?+
The government. The action starts presumed unconstitutional, and the government must show it is narrowly tailored to a compelling interest and uses the least restrictive means.
What does intermediate scrutiny require?+
An important government interest and means substantially related to that interest, and it is used for gender classifications in equal protection cases.
What does the rational basis test require?+
A legitimate state interest and a rational connection between the law's means and goals, generally where no fundamental right or suspect classification is involved.
Why does the level of scrutiny matter so much?+
It changes which facts matter and which side bears the burden, so misidentifying it changes the analysis that follows.
Should I answer threshold questions before the merits?+
Yes. Confirm state action, standing, ripeness and mootness first, since skipping them is a common way to miss an issue the facts were testing.
What to do next
- 1
Confirm state action, standing, and ripeness before reaching any constitutional merits question.
- 2
Build one reliable method for selecting the correct level of scrutiny, and state it explicitly in every answer.
- 3
Practice equal protection and due process problems side by side to see how scrutiny selection drives both.
- 4
Open the full Constitutional Law outline for the complete substantive doctrine.