Unfortunately, former Solicitor General (and current Baylor University president) Ken Starr gets a couple of things wrong in his otherwise commendable NRO essay today on the HHS mandate litigation:
1. Embracing the myth of judicial supremacy, Starr writes:
In a constitutional republic, the Supreme Court is indeed supreme when it comes to saying what the Constitution means. That much has been clear since 1803, when Chief Justice John Marshall spoke for a unanimous Court in the iconic case of Marbury v. Madison.
But, as I have explained repeatedly, it wasn’t until 1958 that the Court first proclaimed its supposed supremacy. Further:
Properly understood, Marbury stands at most for the limited proposition that the courts, in exercising their judicial function, may review the constitutionality of statutes that they are asked to apply. As leading liberal scholar Laurence Tribe has acknowledged, Marbury in no way establishes that the federal judiciary in general—or the Supreme Court in particular—is supreme over the President and Congress in determining what the Constitution means: “presidents have never taken so wholly juricentric … a view of the constitutional universe—a view that certainly isn’t implied by the power of judicial review as recognized in Marbury v. Madison.”
(I’m also far less convinced than Starr is that the Court’s 1997 decision in City of Boerne v. Flores, which held that the federal Religious Freedom Restoration Act could not constitutionally apply against the states, is correct.)
2. With respect to the HHS mandate litigation, Starr wrongly thinks that the Department of Justice is arguing that for-profit corporations aren’t “persons” within the meaning of RFRA (and that the case “may well turn on this very technical debate”). But DOJ doesn’t in fact make that argument. It instead contends that for-profit corporations aren’t persons capable of the “exercise of religion.” DOJ’s contention is wrong (as I’ve spelled out), but it’s very different from the Dictionary Act argument that Starr imagines might be central.