Judicial Supremacy and the Settlement Function

In City of Boerne v. Flores,(1) Supreme Court repeats familiar proposition that it is province and duty of judiciary say what law is.(2) But Court also says that Congress has the duty to make its own informed on meaning of Constitution.(3) The Religious Freedom Restoration Act (RFRA or Act)(4) thus exceeded Congress's power not because constitutional interpretation is outside legislative function, but because Act was based on an interpretation of religion clauses that contradicted an existing judicial precedent.(5) Congress, in short, must defer to Court's existing interpretations. The judiciary's power to interpret Constitution is not exclusive, but it is, according to Flores, supreme as against judgment of a coordinate branch of government.(6) It is supreme not only in sense that Court will give legal effect to its own precedent, but also in sense that Congress breached a duty when it enacted a law based on its own contrary opinion about meaning of Constitution.(7) Important aspects of this doctrine of judicial supremacy have been appearing in case law with increasing frequency and clarity. Components of doctrine are visible in cases constricting political question doctrine(8) as well as in cases countermanding Congress's judgments about meaning of Commerce Clause,(9) separation of powers,(10) and Tenth Amendment.(11) Moreover, sense of self-confidence and self-importance that underlies judicial supremacy can be seen in cases such as Cooper v. Aaron(12) and Planned Parenthood v. Casey,(13) which strongly disapprove of independent judgments on constitutional issues by state and local officials. Flores is culmination of this series of assertions of power by federal judiciary. As Justices gradually have developed judicial supremacy as a fact of institutional life, some thoughtful legal scholars have begun to develop new justifications for it. In particular, Harvard Law Review recently featured a tightly reasoned article, authored by Professors Alexander and Schauer, that defends judicial supremacy without qualification.(14) In this Essay, I intend to lay Flores opinion against Alexander and Schauer article. This comparison, I think, is instructive, albeit in rather perverse ways. Both opinion and article conclude that there is a congressional duty of deference,(15) but Alexander and Schauer's analysis demonstrates why reasons given by Flores Court are inadequate. Moreover, Flores helps to highlight flaws in Alexander and Schauer's analysis. I. LEGISLATIVE DEFERENCE Why, according to Flores, is Congress under a duty to defer to existing judicial interpretations of religion clauses? Justice Kennedy's opinion develops answer at length, but it can be stated concisely: Congress has only enumerated powers, and its power under Section 5 of Fourteenth Amendment (Section 5)(16) is to enforce existing constitutional meaning, not to that meaning.(17) The Court finds evidence for this distinction in Amendment's text,(18) in its history,(19) and in case law that interprets Amendment.(20) The source of Congress's duty, then, is Constitution itself. From one perspective, it is odd for Court to labor so hard to show that Fourteenth Amendment does not authorize Congress to terms of Fourteenth Amendment. Neither Congress, Executive, nor Court is authorized to anything in Constitution because procedure for changing Constitution is prescribed in Article V,(21) which does not authorize unilateral changes by any branch of government.(22) So by change or alter Court must mean something short of amendment--perhaps Court means sort of that can occur during process called interpretation. Put directly, then, reasoning might seem to be that Section 5 authorizes Congress to enforce, but not to interpret, provisions of Fourteenth Amendment. …