Many commentators view City of Boerne v. Flores,(1) in which a divided Supreme Court struck down the Religious Freedom Restoration Act of 1993 (RFRA),(2) as a major defeat in the battle for religious freedom in the United States.(3) Be that as it may, Flores is also an opportunity to begin a discussion on another issue entirely: the appropriate relationship between dissenting Justices and majority opinions. Should a Justice who disagrees with a majority of the Court nevertheless accept the majority's holding as defining the law for purposes of establishing a baseline for subsequent questions?
I. THE BASELINE DILEMMA
In order to understand the question I will address, some brief background on Flores is necessary. Prior to 1990, the Supreme Court interpreted the Free Exercise Clause of the Constitution--applicable to the states through the Fourteenth Amendment--to require the government to accommodate religious beliefs by granting exemptions to those with religious objections to generally applicable laws, unless the government could show a compelling interest. In 1990, in Employment Division v. Smith,(4) the Supreme Court abandoned this doctrine, concluding that neutral, generally applicable laws even if they burdened religious practices--need only serve a legitimate state interest. In 1993, Congress, relying on the power granted to it by Section 5 of the Fourteenth Amendment ("Section 5"),(5) enacted RFRA by an overwhelming bipartisan vote.(6) RFRA reinstated the compelling interest test for any state or federal statute that substantially burdened religious exercise. The question before the Court in Flores was whether Congress's Section 5 powers were broad enough to support RFRA. Justice Kennedy's majority opinion concluded that in attempting to protect rights beyond those covered by the Constitution, as interpreted by the Supreme Court in Smith, Congress exceeded the powers granted to it by the Constitution.
Justice O'Connor issued a passionate dissent in Flores, arguing that the Court should both uphold RFRA and overrule Smith, the case that provoked the enactment of RFRA in the first place. We are left in no doubt about Justice O'Connor's views: she explicitly agreed with the majority that Congress's Section 5 powers are limited, and indeed agreed that were Smith the correct interpretation of the Free Exercise Clause, Congress would have no power to enact RFRA. Nevertheless, she dissented from the invalidation of RFRA on the ground that Smith was incorrectly decided even though there are, at most, only four votes for that proposition.(7)
This constellation of conclusions--that Smith deprives Congress of the power to enact RFRA but that Smith is wrong--gives rise to a question that Justice O'Connor never explicitly answered. She agreed that Congress is limited to implementing the rights actually contained in the Fourteenth Amendment, as judicially defined. But should those rights be defined by the Court as a whole or by each individual Justice? To put it another way, Justice O'Connor's own view is that the congressional interpretation of free exercise rights is the constitutionally correct one, even though a majority of the Court disagrees. As far as Justice O'Connor is concerned, then, is Congress bound by the latter view or may it rely on the former? In one sense, this is asking whether the Court is a unitary entity, which can speak with only one voice, or a collection of individual Justices voting their individual consciences. If the Court is a unitary entity, then perhaps there are times when an individual Justice ought to vote against her own conscience. Whether, and when, she ought to do so, is the subject of this Essay.
Notice that only a Justice who both agrees with Justice Kennedy's narrow interpretation of Section 5 and disagrees with Smith is entangled in this question. If Justice O'Connor disagreed with Justice Kennedy's view of Section 5, for example, then she could easily dissent without raising the question of whose interpretation of the Constitution counts: even if Smith is correct, she might have written, Congress did not exceed its Section 5 powers in enacting this prophylactic statute. …