I’m stealing a page from Ed Whelan’s playbook and launching a series of (occasional) commemorations of acts of unbridled judicial chutzpah. Ed’s series focuses on judicial activism – judicial interpretations that flout governing law. Mine will highlight assertions of judicial supremacy – the Supreme Court’s arrogant claim that its interpretations of the Constitution, right or wrong, are binding on all other actors in our constitutional system.
The claim of judicial supremacy of course cannot be squared with constitutional text, structure, or evidence of original understanding. (This is a recurrent theme in my academic writing. Two years ago, for Bench Memos, I wrote a series of five posts dedicated to this theme: here, here, here, here, and here.) Nonetheless, predictably enough, the claim of judicial supremacy is affirmed by a wealth of self-serving judicial precedent.
The immediate occasion for starting this series is the twentieth anniversary, this past Sunday, of City of Boerne v. Flores. (Planned Parenthood v. Casey, winner of the Grand Prize for judicial arrogance, suffers its twenty-fifth anniversary later this week.)
In City of Boerne, the Court held that the requirements of the Religious Freedom Restoration Act of 1993 (“RFRA”) were unconstitutional insofar as they applied to state governments. The Court held – contrary to text, structure, history, and precedent – that Congress’s power to “enforce” the provisions of the Fourteenth Amendment against states, pursuant to section five of the amendment, is limited to enforcing the Court’s understanding of those provisions.
RFRA took as its starting point a broad understanding of the religious liberty protected by the Free Exercise Clause of the First Amendment. The Court had, just three years earlier, in Employment Division v. Smith (1990), adopted a narrow reading of the Free Exercise Clause – departing from its earlier precedents, which had adopted a broader view of the clause. Congress sought to restore that earlier, broader protection of religious liberty by means of a statute. The Court in City of Boerne held that Congress was constitutionally forbidden from enforcing against state governments any broader understanding of religious liberty than set forth in the Court’s current judicial doctrine – even though that broader understanding had been the Court’s own doctrine for nearly thirty years.
The Court in City of Boerne seemed to take umbrage at the impudence of Congress in not going along with the Court’s new understanding in Smith. The Court’s framing of the case fairly drips with contempt for Congress’s act of constitutional disagreement. Congress’s rather direct disagreement with Smith appeared to be a significant factor in the Court’s decision. “Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause,” the Court explained. (Didn’t they know? Only the judiciary can alter the meaning of the Free Exercise Clause!)
How many different ways is City of Boerne wrong? Put to one side for a moment the fact that Employment Division v. Smith was a deeply questionable decision on the merits of its interpretation of the Free Exercise Clause in the first place. (The broad understanding of Free Exercise is the better view. But that is not my primary point here.) The core problem with City of Boerne is the judicial supremacist conceit that the Court is the only truly authoritative constitutional interpreter. The Constitution’s meaning, under the approach of the Boerne opinion, actually goes up (and down) with the Supreme Court’s decisions. Congress’s power “to enforce” generally-stated limitations on state governments “by appropriate legislation” is limited to implementing the Court’s diktats. Congress’s enforcement power is hitched to the Court’s activist wagon, wherever it goes at any particular point in time. Congress has no independent interpretive power in enforcing the Fourteenth Amendment. The Supreme Court is the boss. Congress is the assistant or adjunct.
There are at least four related reasons why this is conception is way off the mark.