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

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 'strict' in theory and fatal in fact."' This phrase, coined by the late legal scholar Gerald Gunther in 1972, has been called "one of the most famous epithets in American constitutional law"' and has effectively defined the strict scrutiny standard in the minds of lawyers for two generations. Born of Gunther's observation, supported by the iconic decisions of the Warren Court, and reinforced in constitutional law teaching and scholarship, the myth teaches that strict scrutiny is an "inflexible" rule that invalidates every (or nearly every) law to which it applies. In recent years, however, this traditional understanding of strict scrutiny's inevitable deadliness has been challenged, most notably by Justice Sandra Day O'Connor. In Adarand Constructors v. Pena, O'Connor's majority opinion expressed the "wish to dispel the notion that strict scrutiny is 'strict in theory, but fatal in fact."' The fact that strict scrutiny applies "says nothing about the ultimate validity of any particular law; that determination is the job of the court applying" that standard.

In Grutter v. Bollinger, O'Connor's opinion for the Court turned wish into action and upheld an affirmative action policy under strict scrutiny. Rather than create insurmountable hurdles that indiscriminately invalidate laws, O'Connor argued, the "fundamental purpose" of strict scrutiny is to "take relevant differences into account." In short, when applying strict scrutiny, "[c]ontext matters." This Article contributes to this debate by offering 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. Courts routinely uphold laws when applying strict scrutiny, and they do so in every major area of law in which they use the test.

Overall, 30 percent 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.