How not to challenge the Court.

• Author: Devins, Neal
• Position: U.S. Supreme Court - Symposium: Reflections on City of Boerne v. Flores

Congress should have known better, so should the Clinton White House. By requiring a compelling justification for governmental conduct burdensome of religion and thereby "overturning" Employment Division v. Smith,(1) Congress and the White House--through the Religious Freedom Restoration Act (RFRA)(2)--backed the Court into a corner. Specifically, because RFRA called for "the most demanding test known to constitutional law,"(3) Congress limited the Court's role in defining the parameters of First Amendment religious liberty protections to clarifying ambiguous language in RFRA, rather than actually interpreting the Constitution. Adding insult to injury, lawmakers condemned the Court for its "disastrous,"(4) "dastardly and unprovoked,"(5) "devastating"(6) "degradation,"(7) if not "virtual[] eliminat[ion],"(8) of religious liberty protections. For his part, President Clinton, invoked "the power of God," and voiced his conviction that RFRA "was far more consistent with the intent of the Founders of this Nation than the [Smith] decision."(9)

City of Boerne v. Flores,(10) invalidating RFRA, was the natural and inevitable result of these bad words. Citing Marbury v. Madison,(11) the Court in Flores declared that "[t]he power to interpret the Constitution in a case or controversy remains in the Judiciary."(12) Moreover, by telling Congress that "[o]ur national experience teaches that the Constitution is preserved best when each part of the government respects both the Constitution and the proper actions and determinations of the other branches,"(13) the Court fought fire with fire.

Or did it? Notwithstanding its apparent equation of Court interpretations of the Constitution with the Constitution itself, Flores suggests that elected officials and interest groups may find less draconian outlets to vent their frustration with the Court. In particular, well aware that Congress--through its Fourteenth Amendment, Section 5 ("Section 5") enforcement power --may sometimes remedy unconstitutional state and federal action by "correcting" Court decisions, Flores's chief, if not only, complaint with RFRA was that the statute operated as a naked power grab, transferring from the Court to Congress the power to define constitutional standards of review. In this way, Flores does little more than reaffirm the core holding of Marbury v. Madison, that is, judicial review is necessary to ensure that the Constitution not be "on a level with ordinary legislative acts ... alterable when the legislature shall please to alter it."(14) Indeed, unwilling to squelch future democratic challenges to Smith, Flores does not establish any meaningful rules governing the reaches and limits of Congress's power to "correct" Court decisions.(15)

Flores's fuzziness exemplifies the Rehnquist Court's increasing tendency to choose standards that allow for discretionary application instead of absolutist rules.(16) When it comes to the balance of powers, as I will argue here, standard-based decision making is appropriate.(17) Inflexible rules prevent the branches from engaging in ongoing dialogues over the Constitution's meaning--dialogues that often result in more vibrant and durable constitutional interpretation. For this reason, the Court should have struck down RFRA. Rather than encourage dialogue over the meaning of the Constitution's religious liberty protection, RFRA sought to silence the Supreme Court.

Ironically, Flores is open to criticism on these very grounds. Despite its recognition that Congress can sometimes correct errant Supreme Court decisions,(18) Flores props up an unworkable formalistic model. The Court, for example, never acknowledged that disagreement with its rulings by lawmakers, government officials, and interest groups often plays a pivotal and salutary role in defining constitutional values. Over time, however, Flores's suggestion that the Court's constitutional interpretations are definitive and final will give way to those social and political forces that prompted RFRA's enactment in the first place. Time and again, the Court has bended in the face of sustained popular resistance to its decision making.(19) In this way, the Smith-RFRA-Flores saga is simply the opening volley in what promises to be an ongoing and, ultimately, productive dialogue about the meaning of First Amendment religious liberty protections.

1. THE REALPOLITIK OF CITY OF BOERNE V. FLORES

   In critical respects, Flores reads like a high school civics lesson. The Court began and ended its analysis with Marbury v. Madison, reminding Congress and the nation that, "[u]nder our Constitution ... the `powers of the legislature are defined and limited'"(20) and that the "courts retain the power ... to determine if Congress has exceeded its authority."(21) Without blinking, Flores derived from Marbury that Court decisions are sacrosanct and that Congress's role is limited to "mak[ing] its own informed judgment on the meaning and force of the Constitution ... in the first instance," that is, before the Court has spoken.(22) When the Court has acted, popular government's role in affecting constitutional change is limited to "the difficult and detailed amendment process."(23)

   This suggestion, of course, is nonsense. The historical record provides overwhelming evidence that other parts of government regularly challenge the Court's constitutional reasoning, and that the Court is influenced by these challenges as well as the broader social currents which surround it.(24) As Ruth Bader Ginsburg noted a year before her appointment to the Supreme Court, judges "play an interdependent part in our democracy. They do not alone shape legal doctrine[,] ... they participate in a dialogue with other organs of government, and with the people as well."(25) More striking, Anthony Kennedy, in direct conflict with his opinion for the Court in Flores, told Congress at his confirmation hearing that they "would be fulfilling [their] duty" by limiting the effects of Supreme Court decisions that they believe are "wrong under the Constitution."(26)

   Kennedy's conflicted view of the relationship between Congress and the Court is not without explanation. Flores is emblematic of the Supreme Court's practice of depicting itself as having the final word on the Constitution's meaning when the Court feels especially challenged by the other branches. For instance, when Marbury declared that "[i]t is emphatically the province and duty of the judicial department to say what the law is,"(27) Jeffersonians in Congress--through the threat of impeachment and the elimination of judgeships--sought to neuter the Federalist-dominated judiciary.(28) Cooper v. Aaron(29) is much the same. Cooper's claim that "the federal judiciary is supreme in the exposition of the law of the Constitution"(30) was made in the face of massive Southern resistance to Brown v. Board of Education,(31) including Arkansas's enlistment of the national guard to deny African American schoolchildren access to Little Rock's Central High School.(32) For the Rehnquist Court, Planned Parenthood v. Casey,(33) its 1992 decision reaffirming the "central holding" of Roe v. Wade,(34) nicely illustrates this phenomenon.(35)

   Decided in the midst of legislative deliberation on RFRA, Casey underscores the Court's belief that it must resist political challenges to its independence. Refusing to bend to the stated desires of the presidents who appointed them and overrule Roe "under political fire,"(36) Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter "call[ed] the contending sides of a national controversy to end their national division by accepting" the Court's decision in Casey.(37) Correspondingly, in acknowledging that the Court lacked the power of the purse and sword and that its authority therefore resided "in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary,"(38) the Casey plurality concluded that a surrender to political pressure would result in "profound and unnecessary damage" both to the Court and to "the Nation's commitment to the rule of law."(39) In other words, as psychologists Tom Tyler and Gregory Mitchell observed, the Court seems to believe that "public acceptance of the Court's role as interpreter of the Constitution--that is, the public belief in the Court's institutional legitimacy--enhances public acceptance of controversial Court decisions."(40)

   Notwithstanding intense congressional, presidential, and religious interest and involvement in the abortion dispute, the lessons of Casey were lost on the drafters of RFRA. Profoundly upset by the Court's limitation of religious liberty protections to governmental conduct that targets religion, RFRA supporters failed to heed Casey's implicit warning about the Court's sensitivity to political challenges to its authority. Instead, RFRA supporters invested no energy in casting their handiwork as anything but the de jure nullification of the Supreme Court's voice in religious liberty decision making. Making no meaningful attempt to reconcile RFRA's "compelling justification"(41) standard with the Court's standards governing Congress's Section 5 enforcement power,(42) RFRA's legislative history can only be understood as a direct challenge to the Court's basic authority to say "what the law is."(43)

   Let me explain. RFRA, as an initial matter, must be understood against the backdrop of Employment Division v. Smith,(44) a decision that speaks more to the judicial role in overseeing democratic institutions than it does to the substantive meaning of religious liberty.(45) Proclaiming that "it is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice,"(46) the Smith Court acknowledged that its test would place religious minorities at the mercy of the political process but that discriminatory treatment was an "unavoidable...