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Fatal In Theory And Strict In Fact: An Empirical Analysis Of Strict Scrutiny In The Federal Courts, Adam Winkler
Fatal In Theory And Strict In Fact: An Empirical Analysis Of Strict Scrutiny In The Federal Courts, Adam Winkler
Vanderbilt Law Review
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 …