How Not to Challenge the Court

Congress should have known better, so should Clinton White House. By requiring a compelling justification for governmental conduct burdensome of religion and thereby overturning Employment Division v. Smith,(1) Congress and White House--through Religious Freedom Restoration Act (RFRA)(2)--backed Court into a corner. Specifically, because RFRA called for the most demanding test known to constitutional law,(3) Congress limited Court's role in defining parameters of First Amendment religious liberty protections to clarifying ambiguous language in RFRA, rather than actually interpreting Constitution. Adding insult to injury, lawmakers condemned 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 far more consistent with intent of Founders of this Nation than [Smith] decision.(9) City of Boerne v. Flores,(10) invalidating RFRA, was natural and inevitable result of these bad words. Citing Marbury v. Madison,(11) Court in Flores declared that [t]he power to interpret Constitution in a case or controversy remains in Judiciary.(12) Moreover, by telling Congress that [o]ur national experience teaches that Constitution is preserved best when each part of government respects both Constitution and proper actions and determinations of other branches,(13) Court fought fire with fire. Or did it? Notwithstanding its apparent equation of Court interpretations of Constitution with Constitution itself, Flores suggests that elected officials and interest groups may find less draconian outlets to vent their frustration with 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 statute operated as a naked power grab, transferring from Court to Congress power to define constitutional standards of review. In this way, Flores does little more than reaffirm core holding of Marbury v. Madison, that is, judicial review is necessary to ensure that Constitution not be a level with ordinary legislative acts ... alterable when legislature shall please to alter it.(14) Indeed, unwilling to squelch future democratic challenges to Smith, Flores does not establish any meaningful rules governing reaches and limits of Congress's power to Court decisions.(15) Flores's fuzziness exemplifies Rehnquist Court's increasing tendency to choose standards that allow for discretionary application instead of absolutist rules.(16) When it comes to balance of powers, as I will argue here, standard-based decision making is appropriate.(17) Inflexible rules prevent branches from engaging in ongoing dialogues over Constitution's meaning--dialogues that often result in more vibrant and durable constitutional interpretation. For this reason, Court should have struck down RFRA. Rather than encourage dialogue over meaning of Constitution's religious liberty protection, RFRA sought to silence 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 Court's constitutional interpretations are definitive and final will give way to those social and political forces that prompted RFRA's enactment in first place. …