How Not to Challenge the Court

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. …