Judicial Supremacy and the Settlement Function
Nagel, Robert F., William and Mary Law Review
In City of Boerne v. Flores,(1) the Supreme Court repeats the familiar proposition that it is the province and duty of the judiciary "to say what the law is."(2) But the Court also says that Congress has "the duty to make its own informed judgment" on the meaning of the Constitution.(3) The Religious Freedom Restoration Act (RFRA or the "Act")(4) thus exceeded Congress's power not because constitutional interpretation is outside the legislative function, but because the Act was based on an interpretation of the religion clauses that contradicted an existing judicial precedent.(5) Congress, in short, must defer to the Court's existing interpretations. The judiciary's power to interpret the Constitution is not exclusive, but it is, according to Flores, supreme as against the judgment of a coordinate branch of government.(6) It is supreme not only in the sense that the Court will give legal effect to its own precedent, but also in the sense that Congress breached a duty when it enacted a law based on its own contrary opinion about the meaning of the Constitution.(7)
Important aspects of this doctrine of judicial supremacy have been appearing in the case law with increasing frequency and clarity. Components of the doctrine are visible in cases constricting the political question doctrine(8) as well as in cases countermanding Congress's judgments about the meaning of the Commerce Clause,(9) separation of powers,(10) and the Tenth Amendment.(11) Moreover, the 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 the culmination of this series of assertions of power by the federal judiciary. As the 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, the 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 the Flores opinion against the Alexander and Schauer article. This comparison, I think, is instructive, albeit in rather perverse ways. Both the opinion and the article conclude that there is a congressional duty of deference,(15) but Alexander and Schauer's analysis demonstrates why the reasons given by the 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 the religion clauses? Justice Kennedy's opinion develops the answer at length, but it can be stated concisely: Congress has only enumerated powers, and its power under Section 5 of the Fourteenth Amendment ("Section 5")(16) is to enforce existing constitutional meaning, not to alter that meaning.(17) The Court finds evidence for this distinction in the Amendment's text,(18) in its history,(19) and in the case law that interprets the Amendment.(20) The source of Congress's duty, then, is the Constitution itself.
From one perspective, it is odd for the Court to labor so hard to show that the Fourteenth Amendment does not authorize Congress to alter the terms of the Fourteenth Amendment. Neither Congress, the Executive, nor the Court is authorized to change anything in the Constitution because the procedure for changing the Constitution is prescribed in Article V,(21) which does not authorize unilateral changes by any branch of government.(22) So by "change" or "alter" the Court must mean something short of amendment--perhaps the Court means the sort of change that can occur during the process called "interpretation." Put directly, then, the reasoning might seem to be that Section 5 authorizes Congress to enforce, but not to interpret, the provisions of the Fourteenth Amendment. …