For the lawyers - what does "strict scrutiny" mean?

[StreetScooby 5]

In practice, what does "strict scrutiny" mean? This phrase is used in context in the article shown below. Curious to see how it's applied in the real world.

===========================================

From the 17-Jul-2014 WSJ

Racial Preference Rewind
UT and the Fifth Circuit show what they think of Justice Kennedy's ruling.
Email
Print
74 Comments
Facebook
Twitter
Google+
LinkedIn

smaller
Larger

July 16, 2014 7:28 p.m. ET

Anthony Kennedy, call your office. Last year the Supreme Court Justice wrote a 7-1 majority opinion narrowing the use of racial preferences in Fisher v. University of Texas and sending the case back to the Fifth Circuit Court of Appeals for reconsideration. On Tuesday a three-judge panel of that court ruled 2-1 that UT's program is still fine and dandy.

In Fisher Justice Kennedy blinked from ending racial preferences but said admissions policies were subject to strict scrutiny and that universities were entitled to "no deference" from the courts on the means they use to create diversity. The Justices ruled that a school using racial preferences had to show that its program was narrowly tailored and that the school had failed to achieve adequate diversity through race-neutral means.

So much for that. UT's automatic admissions policy, which admits the top tier of high school seniors across the state, already creates diversity on campus without racial preferences. But according to the two judges in the Fifth Circuit majority, Texas can still use race in pursuit of enriching the educational environment with students from different experiences and backgrounds.
Enlarge Image

Supreme Court Justice Anthony Kennedy Associated Press

In his dissent, Judge Emilio Garza wrote that while the university has said it is seeking to achieve a "critical mass" of diversity, it "has failed to define this term in any objective manner." Thus it is impossible to substantiate whether the school's use of preferences is narrowly tailored or not.

"By holding that the University's use of racial classifications is narrowly tailored, the majority continues to defer impermissibly to the University's claims," Judge Garza writes, "This deference is squarely at odds with the central lesson of Fisher."

None of this should surprise anyone, especially not Justice Kennedy. The use of racial preferences is so deeply embedded in the habits of universities, and for that matter liberal legal culture, that schools will look for any excuse to allocate admissions by skin color until the Supreme Court clearly rules it out. If Abigail Fisher's next appeal reaches the High Court, perhaps Justice Kennedy will rediscover the courage of his convictions.

We are all engines of karma

[RonD1120 62]

I wonder why none of our great legal minds in the SC are responding.

Look for the shiny things of God revealed by the Holy Spirit. They only last for an instant but it is a Holy Instant. Let your soul absorb them.

[Southern_Man 0]

Not a lawyer but: A standard of Judicial Review for a challenged policy in which the court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy.

From: http://legal-dictionary.thefreedictionary.com/Strict+Scrutiny+Test

"What if there were no hypothetical questions?"

[lawrocket 3]

Read this and the posts following it.

[Url]http://www.dropzone.com/cgi-bin/forum/gforum.cgi?post=722626#722626[/url]

My wife is hotter than your wife.

[StreetScooby 5]

Thanks for the post. I will review this.

We are all engines of karma

[turtlespeed 221]

lawrocket

Read this and the posts following it.

[Url]http://www.dropzone.com/cgi-bin/forum/gforum.cgi?post=722626#722626[/url]

Look up " subjective" and "political motivation" and "hypothetical"

I'm not usually into the whole 3-way thing, but you got me a little excited with that. - Skymama
BTR #1 / OTB^5 Official #2 / Hellfish #408 / VSCR #108/Tortuga/Orfun

[johnjyuuu 0]

I am an attorney (not that that matters to answer this).

Strict scrutiny refers to the highest (most stringent) standard of review when the government takes action (law or policy) which either infringes on one's constitutional rights or when government action restricts one race (or religion/sex/etc.) more than others.

In order for governmental action to survive "strict scrutiny," there must be a compelling interest for the government to take such action, the law must be narrowly tailored (no broader than necessary), and lastly must be the least restrictive means for achieving the interest.

If a law/policy fails the strict scrutiny test, it is deemed unconstitutional (a violation of one's (or a group's) fundamental liberty interest) protected by the 14th amendment to the U.S. Constitution.

Laws/policies/ordinances are rarely challenged as unconstitutional because the costs (attorney's fees) generally outweigh any benefit to the individual(s) challenging them and laws/policies/ordinances are usually carefully thought out to avoid potential Constitutional issues down the road.

[StreetScooby 5]

That is a very clear answer to my question. Thank you.

We are all engines of karma

[turtlespeed 221]

johnjyuuu

I am an attorney (not that that matters to answer this).

Strict scrutiny refers to the highest (most stringent) standard of review when the government takes action (law or policy) which either infringes on one's constitutional rights or when government action restricts one race (or religion/sex/etc.) more than others.

In order for governmental action to survive "strict scrutiny," there must be a compelling interest for the government to take such action, the law must be narrowly tailored (no broader than necessary), and lastly must be the least restrictive means for achieving the interest.

If a law/policy fails the strict scrutiny test, it is deemed unconstitutional (a violation of one's (or a group's) fundamental liberty interest) protected by the 14th amendment to the U.S. Constitution.

Laws/policies/ordinances are rarely challenged as unconstitutional because the costs (attorney's fees) generally outweigh any benefit to the individual(s) challenging them and laws/policies/ordinances are usually carefully thought out to avoid potential Constitutional issues down the road.

Serious question: Is there any bias or prejudice involved in the process?

Is there any politics involved in the vetting?

I'm not usually into the whole 3-way thing, but you got me a little excited with that. - Skymama
BTR #1 / OTB^5 Official #2 / Hellfish #408 / VSCR #108/Tortuga/Orfun

[johnjyuuu 0]

turtlespeed

***I am an attorney (not that that matters to answer this).

Strict scrutiny refers to the highest (most stringent) standard of review when the government takes action (law or policy) which either infringes on one's constitutional rights or when government action restricts one race (or religion/sex/etc.) more than others.

In order for governmental action to survive "strict scrutiny," there must be a compelling interest for the government to take such action, the law must be narrowly tailored (no broader than necessary), and lastly must be the least restrictive means for achieving the interest.

If a law/policy fails the strict scrutiny test, it is deemed unconstitutional (a violation of one's (or a group's) fundamental liberty interest) protected by the 14th amendment to the U.S. Constitution.

Laws/policies/ordinances are rarely challenged as unconstitutional because the costs (attorney's fees) generally outweigh any benefit to the individual(s) challenging them and laws/policies/ordinances are usually carefully thought out to avoid potential Constitutional issues down the road.

Serious question: Is there any bias or prejudice involved in the process?

Is there any politics involved in the vetting?

Well Judges are just normal people in black robes so i'd say it depends. While Judges are supposed to be fair and impartial, in my experience, this is not always the case. In the event a Judge rules in a biased or prejudicial way, his/her ruling can be appealed from the district court to the court of appeals and in some cases, all the way up to the US Supreme Court (if the Supreme Court decides your matter is important enough to take up their time).

From a historical perspective, the US Supreme Court was certainly not unbiased, as in 1857 the Chief Justice himself (the highest ranking Judge in the entire United States) ruled against an african american man and wrote that african americans were an inferior race and as such...as "beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect."

But then again, some of the men who founded the United States and even some who served as President of the United States owned slaves, so they were hypocritical to say the least.

[Andy9o8 2]

Ordinary scrutiny is the way an adult regards other people's teenage sons. Strict scrutiny is the way a father regards boys who want to date his daughter.

[StreetScooby 5]

I knew I could rely upon you for a simple answer.
Such things take considerable skill, IMO.
Love it.

We are all engines of karma