Justice O'Connor's dilemma: the baseline question.

• Author: Sherry, Suzanna
• Position: U.S. Supreme Court Justice Sandra Day O'Connor - Symposium: Reflections on City of Boerne v. Flores

Many commentators view City of Boerne v. Flores,(1) in which a divided Supreme Court struck down the Religious Freedom Restoration Act of 1993 (RFRA),(2) as a major defeat in the battle for religious freedom in the United States.(3) Be that as it may, Flores is also an opportunity to begin a discussion on another issue entirely: the appropriate relationship between dissenting Justices and majority opinions. Should a Justice who disagrees with a majority of the Court nevertheless accept the majority's holding as defining the law for purposes of establishing a baseline for subsequent questions?

1. THE BASELINE DILEMMA

   In order to understand the question I will address, some brief background on Flores is necessary. Prior to 1990, the Supreme Court interpreted the Free Exercise Clause of the Constitution--applicable to the states through the Fourteenth Amendment--to require the government to accommodate religious beliefs by granting exemptions to those with religious objections to generally applicable laws, unless the government could show a compelling interest. In 1990, in Employment Division v. Smith,(4) the Supreme Court abandoned this doctrine, concluding that neutral, generally applicable laws even if they burdened religious practices--need only serve a legitimate state interest. In 1993, Congress, relying on the power granted to it by Section 5 of the Fourteenth Amendment ("Section 5"),(5) enacted RFRA by an overwhelming bipartisan vote.(6) RFRA reinstated the compelling interest test for any state or federal statute that substantially burdened religious exercise. The question before the Court in Flores was whether Congress's Section 5 powers were broad enough to support RFRA. Justice Kennedy's majority opinion concluded that in attempting to protect rights beyond those covered by the Constitution, as interpreted by the Supreme Court in Smith, Congress exceeded the powers granted to it by the Constitution.

   Justice O'Connor issued a passionate dissent in Flores, arguing that the Court should both uphold RFRA and overrule Smith, the case that provoked the enactment of RFRA in the first place. We are left in no doubt about Justice O'Connor's views: she explicitly agreed with the majority that Congress's Section 5 powers are limited, and indeed agreed that were Smith the correct interpretation of the Free Exercise Clause, Congress would have no power to enact RFRA. Nevertheless, she dissented from the invalidation of RFRA on the ground that Smith was incorrectly decided even though there are, at most, only four votes for that proposition.(7)

   This constellation of conclusions--that Smith deprives Congress of the power to enact RFRA but that Smith is wrong--gives rise to a question that Justice O'Connor never explicitly answered. She agreed that Congress is limited to implementing the rights actually contained in the Fourteenth Amendment, as judicially defined. But should those rights be defined by the Court as a whole or by each individual Justice? To put it another way, Justice O'Connor's own view is that the congressional interpretation of free exercise rights is the constitutionally correct one, even though a majority of the Court disagrees. As far as Justice O'Connor is concerned, then, is Congress bound by the latter view or may it rely on the former? In one sense, this is asking whether the Court is a unitary entity, which can speak with only one voice, or a collection of individual Justices voting their individual consciences. If the Court is a unitary entity, then perhaps there are times when an individual Justice ought to vote against her own conscience. Whether, and when, she ought to do so, is the subject of this Essay.

   Notice that only a Justice who both agrees with Justice Kennedy's narrow interpretation of Section 5 and disagrees with Smith is entangled in this question. If Justice O'Connor disagreed with Justice Kennedy's view of Section 5, for example, then she could easily dissent without raising the question of whose interpretation of the Constitution counts: even if Smith is correct, she might have written, Congress did not exceed its Section 5 powers in enacting this prophylactic statute.(8) It is only because Justice O'Connor agreed that Congress's Section 5 powers are to be narrowly construed, cabined by the judicially determined meaning of the Free Exercise Clause, that she must face the question at all.

   The same question, which I will call the baseline question, arises in a variety of circumstances. In its broadest formulation, the question asks about the status of majority opinions of the Supreme Court as positive law. Does a majority decision of the Court constitute the law, even if it is incorrect? The Court clearly believes that its own determinations define the law as far as all other governmental actors are concerned, from the president to the lower federal courts to state officials. But to what extent do existing majority determinations define the law for individual Justices who dissented from, or now disagree with, the original determinations? It may be, in Chief Justice Marshall's oft-repeated words, "emphatically the province and duty of the judicial department to say what the law is."(9) But adherence to Justice Marshall's dogma--even in its strongest version--still does not answer the question with which I am concerned in this Essay: who can authoritatively speak for the judicial department?

   The baseline question arises whenever the Court has to determine what the law is or was in order to answer a further question. The paradigmatic baseline is a case in which the question is whether some government body has disobeyed the Supreme Court's instructions. The Court cannot determine whether the instructions have been disobeyed without consulting the instructions themselves. The baseline question asks whether a Justice who disagrees with those instructions should nevertheless judge the actor against them. Variants of the baseline question arise in other contexts as well. In order to decide whether a new statute works a retroactive effect, for example, the Court has to establish what the law was at a prior point in time to set a baseline against which to measure the challenged action. Or when a majority of the Court determines that it has jurisdiction in a particular case, dissenting Justices have to decide whether to accept that determination and move on to the merits.

   These situations sometimes require the Court, or individual Justices, to determine whether majority pronouncements are positive law and thus constitute the baseline from which to proceed to further questions. Justices who dissented from the original pronouncement are faced with a special dilemma: if they disagree with how the Court defined the law, should they also reject the Court's ruling as the baseline, implicitly denying it the status of the law of the land? If there are five votes, then the new majority can of course change existing law. But if the law remains unchanged, is it still law as far as dissenting Justices are concerned? No Justice has ever directly addressed this question, nor has it been explored in the scholarly literature.(10)

   Notice that the baseline dilemma can be distinguished from another question to which it bears a superficial resemblance. Asking whether a dissenting Justice should accept the majority pronouncement as the law is not the same as determining whether a prior decision ought to be accorded the respect demanded by the doctrine of stare decisis. The stare decisis question asks whether the Court as a whole should overrule its prior decision; majority and dissenting Justices often disagree on that issue. Once a majority decides not to overrule, however, what should a dissenting Justice do in the next case?

   If the next case raises essentially the same question, then there is no baseline dilemma. The dissenting Justice can either concede the point or reargue the issue. Justices thus may occasionally continue to reject a particular holding of the Supreme Court from which they dissented, dissenting again and again in every case raising the same question or issue. Justices Brennan and Marshall took this approach in death penalty cases, for example, reiterating in every case their view--repeatedly rejected by the majority--that the death penalty was always unconstitutional.(11)

   Repeated dissents on the same question, however, do not usually raise the baseline dilemma. Repeated dissents raise only the question of whether the original decision was correct, not the question of whether the original and presumably incorrect majority pronouncement should nevertheless be treated as establishing the legal baseline. It is only when the answer in the second case depends on the Court having already answered the initial question that the baseline dilemma arises. In repeated dissents, for example, no action is being judged by whether it conforms to the law as previously pronounced by the Supreme Court. Either the action is legal or it is not, and no prior Supreme Court decision is relevant to that determination except as a matter of stare decisis. In the baseline situation, by contrast, the outcome actually depends on whether the earlier pronouncement--right or wrong--should be taken as establishing the governing law. Repeated dissents continue to raise the same question, perhaps with slightly different frills. Baseline cases, however, raise entirely new questions, but ones that cannot be resolved without first consulting the law previously announced by the Court.

   Justice O'Connor in Flores--without discussing the issue--declined to use Smith as a baseline, instead judging Congress's Section 5 power against her own, dissenting, view of the meaning of the Free Exercise Clause. It is easy to applaud Justice O'Connor's approach: after all, Section 5 gives Congress the power to enforce the Fourteenth Amendment, and if Justice O'Connor believes that the Fourteenth Amendment protects a right to...