2.5.1 GOVERNMENTACTIONSTANDARDS OFREVIEW
Courts usually use the phrase standard of review to describe the standard that a court will use to review the constitutionality of a state statute or other government action. Some actions will be reviewed under a “strict scrutiny” standard, some under a “heightened scrutiny” standard, and others under a “rational basis” standard.54Although these phrases all describe standards that are used to review, they are not the same thing as appellate standards of review.
Thinking in terms of “deference,” which is so crucial to appellate standards of review, may be helpful. When the court is asked to review the constitutionality of a state statute or other government action, it is deciding whether to defer to the decision of a state legislature or other government actor. The government action standard of review tells it how closely to scrutinize the government actor’s decision when conducting its review.All types of courts, from the trial court on up through the United States Supreme Court, may use a strict scrutiny, heightened scrutiny, or rational basis standard to review the constitutionality of a government action.
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