Judicial supremacy and the settlement function.

• Author: Nagel, Robert F.
• Position: Symposium: Reflections on City of Boerne v. Flores

In City of Boerne v. Flores,(1) the Supreme Court repeats the familiar proposition that it is the province and duty of the judiciary "to say what the law is."(2) But the Court also says that Congress has "the duty to make its own informed judgment" on the meaning of the Constitution.(3) The Religious Freedom Restoration Act (RFRA or the "Act")(4) thus exceeded Congress's power not because constitutional interpretation is outside the legislative function, but because the Act was based on an interpretation of the religion clauses that contradicted an existing judicial precedent.(5) Congress, in short, must defer to the Court's existing interpretations. The judiciary's power to interpret the Constitution is not exclusive, but it is, according to Flores, supreme as against the judgment of a coordinate branch of government.(6) It is supreme not only in the sense that the Court will give legal effect to its own precedent, but also in the sense that Congress breached a duty when it enacted a law based on its own contrary opinion about the meaning of the Constitution.(7)

Important aspects of this doctrine of judicial supremacy have been appearing in the case law with increasing frequency and clarity. Components of the doctrine are visible in cases constricting the political question doctrine(8) as well as in cases countermanding Congress's judgments about the meaning of the Commerce Clause,(9) separation of powers,(10) and the Tenth Amendment.(11) Moreover, the sense of self-confidence and self-importance that underlies judicial supremacy can be seen in cases such as Cooper v. Aaron(12) and Planned Parenthood v. Casey,(13) which strongly disapprove of independent judgments on constitutional issues by state and local officials. Flores is the culmination of this series of assertions of power by the federal judiciary. As the Justices gradually have developed judicial supremacy as a fact of institutional life, some thoughtful legal scholars have begun to develop new justifications for it. In particular, the Harvard Law Review recently featured a tightly reasoned article, authored by Professors Alexander and Schauer, that defends judicial supremacy "without qualification."(14)

In this Essay, I intend to lay the Flores opinion against the Alexander and Schauer article. This comparison, I think, is instructive, albeit in rather perverse ways. Both the opinion and the article conclude that there is a congressional duty of deference,(15) but Alexander and Schauer's analysis demonstrates why the reasons given by the Flores Court are inadequate. Moreover, Flores helps to highlight flaws in Alexander and Schauer's analysis.

1. LEGISLATIVE DEFERENCE

   Why, according to Flores, is Congress under a duty to defer to existing judicial interpretations of the religion clauses? Justice Kennedy's opinion develops the answer at length, but it can be stated concisely: Congress has only enumerated powers, and its power under Section 5 of the Fourteenth Amendment ("Section 5")(16) is to enforce existing constitutional meaning, not to alter that meaning.(17) The Court finds evidence for this distinction in the Amendment's text,(18) in its history,(19) and in the case law that interprets the Amendment.(20) The source of Congress's duty, then, is the Constitution itself.

   From one perspective, it is odd for the Court to labor so hard to show that the Fourteenth Amendment does not authorize Congress to alter the terms of the Fourteenth Amendment. Neither Congress, the Executive, nor the Court is authorized to change anything in the Constitution because the procedure for changing the Constitution is prescribed in Article V,(21) which does not authorize unilateral changes by any branch of government.(22) So by "change" or "alter" the Court must mean something short of amendment--perhaps the Court means the sort of change that can occur during the process called "interpretation." Put directly, then, the reasoning might seem to be that Section 5 authorizes Congress to enforce, but not to interpret, the provisions of the Fourteenth Amendment. If this is what the Court meant, then presumably RFRA would have been constitutional if Section 5 had said, "Congress shall have power to enforce and interpret the provisions of this amendment."

   This, however, cannot be what the Court meant because, as I indicated at the outset, Flores plainly states that Congress "has not just the right but the duty to make its own informed judgment on the meaning and force of the Constitution."(23) Congress thus is authorized to interpret the whole Constitution, including the Fourteenth Amendment. The Court's position, therefore, must be that the terms and history of Section 5 require that, when interpreting the terms of the Fourteenth Amendment, Congress defer to existing judicial precedents.

   One of the many virtues of the Alexander and Schauer article is that it demonstrates why this explanation for legislative deference begs the question at issue. They write: "Even a written constitution explicitly specifying its authoritative interpreter would rest on a preconstitutional understanding about who should be the authoritative interpreter of that provision."(24) Thus, the force of the justification offered in Flores ultimately depends not on the meaning of "enforce" in Section 5 but on the Court's assumption that the judiciary is the authoritative interpreter of that word. For members of Congress who do not accept this assumption, the main argument in Flores offers no reason to defer to the Court's judgment that "enforce" means to interpret constitutional provisions consistently with existing legal precedent.(25) Certainly members could agree with the Court's constitutional analysis, but they could also in good faith reject that analysis. Indeed, they could reject that analysis even if it were based on much stronger reasons than those actually offered by the Court. Suppose that Section 5 had said, "Congress shall enforce the provisions of this amendment in accordance with applicable judicial precedent." If Congress believed that it should interpret Section 5, then Congress could conclude that "in accordance with" and "applicable" meant that it was free to ignore precedents that in its judgment were inapposite, outdated, or irrelevant. Given that the Flores Court's analysis is based on the single, rather cryptic word "enforce," Congress surely could interpret Section 5 so that it does not require legislative deference on the meaning of the rest of the Fourteenth Amendment.

   To turn the matter around, consider again the hypothetical possibility that Section 5 specifically authorized Congress "to enforce and interpret" the provisions of the Amendment. Would the outcome of Flores have had to be different? Not on the Court's assumption that it was authorized to interpret the words "enforce and interpret." The Court could have insisted that in context "to interpret" referred to circumstances where no applicable judicial precedents existed and thus did not include the power to interpret in a way that conflicted with judicial precedent. Although this possibility seems farfetched, recall that under the Court's working assumptions in Flores, Congress does have the power both to enforce and interpret the Fourteenth Amendment.(26) The addition of the word "interpret" only confirms these assumptions and need not change the conclusion that Congress's interpretive power must be exercised in accordance with existing precedents.

   In fact, of course, neither Section 5 nor any other provision in the Constitution specifies an authoritative interpreter. As Alexander and Schauer note, under this circumstance "it is even clearer" that the document cannot settle whose interpretation is authoritative.(27) In short, the Court's interpretation of Section 5 as requiring Congress to defer to judicial precedents does not determine Congress's constitutional duties unless it can be demonstrated that Congress must defer to the Court's interpretation of Section 5.

   In Flores, the Court makes no such demonstration. The closest it comes to arguing for what Alexander and Schauer call a "preconstitutional understanding"(28) is a brief paragraph at the end of the opinion. Immediately after acknowledging that congressional power...