The Myth of Strict Scrutiny

In this paper, we argue that the notion of a single standard of strict scrutiny as applied in equal protection cases is flawed. By examining racial redistricting, remedial affirmative action, and diversity-based affirmative action cases, we demonstrate that the Court applies quite different tests in each of these areas. The costs of maintaining the fiction of unitary strict scrutiny is high. In the area of racial profiling, for example, courts refuse to apply strict scrutiny for fear that it will either overly hamper police or will weaken strict scrutiny in other areas of racial discrimination. An open acknowledgment that the Court is already using different standards of analysis for different types of racial discrimination would allow courts to craft appropriate standards without fear of diminishing protections in other areas.