Before 1990, the court had generally held that any government restriction on religion must serve a compelling public interest in the least burdensome way - a standard known as the "strict scrutiny" test.

On the other hand, some officials in cities with quota-type set-aside programs contend that complying with the Supreme Court's "strict scrutiny" test will pose no problem.

Historically, the strict scrutiny test has been exceedingly difficult to meet.

Occam's razor is used to adjudicate between theories that have already passed "theoretical scrutiny" tests, and which are equally well-supported by the evidence.

O'Connor utilized the test as an alternative to the strict scrutiny test applied in Roe v. Wade, 410 U.S. 113 (1973).

Adarand appealed again to the Supreme Court last November, arguing that the program still incorporated racial preferences that failed the strict scrutiny test.

In order to pass an intermediate scrutiny test, "the challenged law must further an important government interest by means that are substantially related to that interest".

Last September, the United States Court of Appeals for the 10th Circuit, in Denver, said the program met the "strict scrutiny" test and was constitutional.

As such, the court implicitly endorsed the application of the strict scrutiny test in cases concerning fundamental rights in Malaysia.

Breyer based his finding not on a strict scrutiny test that the plurality had used, but on a "proportionality" or "intermediate scrutiny test".