The Blog

Pg. 21

12:00 AM, Jul 21, 1997 • By DENNIS TETI
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The Supreme Court and Congress are on a collision course. Three times in the final week of its term, the high court struck down laws passed by overwhelming congressional majorities, championed by the president, and defended by the Justice Department. This is historically unprecedented. Even during the last great confrontation between the branches in the 1930s, anti- New Deal justices never overturned so many federal statutes in so short a time.

Judicial resistance to popular rule through Congress is most starkly displayed in City of Boerne v. Flores, in which the court overturned the Religious Freedom Restoration Act (RFRA). Justices Kennedy, Stevens, and Ginsburg joined hands with Justices Scalia and Thomas and Chief Justice Rehnquist in the 6-3 ruling, which insisted that the court, not Congress, has "the final word" in interpreting the Constitution. Congress passed RFRA in 1993 at the behest of a large coalition of religious groups unhappy with a 1990 Supreme Court decision, Employment Division v. Smith. The court had sided in that case with the state of Oregon, which denied unemployment benefits to workers fired for using the hallucinogenic drug peyote. Because the workers used the drug for religious purposes, they claimed the state had violated their First Amendment right to freely exercise their religion. Both mainline and fringe religious groups worried that Smith would pave the way for local and state governments to violate their free-exercise rights, so they called on Congress for relief.

The oral arguments in Boerne made plain that the Supreme Court saw the case as a showdown with Congress. Anxious justices pressed the lawyers: Did lawmakers pass RFRA to express disagreement with Smith? And as hard as the justices pressed, the lawyers defending RFRA tried to reassure them that Congress wouldn't think of reversing the Supreme Court:

Q [from the court]: Now, you admit, I suppose, that Congress cannot come in and overrule a decision of this Court it doesn't like by legislation. . . .

Counsel: Congress cannot overrule the Court.

Q: And there's some indication that this was what Congress was all about here. . . . If Smith were to come up again, I guess [RFRA] would be an effort by Congress to overturn that decision. . . .

Counsel: Overturn is shorthand, but yes, to achieve a different result on similar facts under the statute than we would achieve under the Constitution itself, that's correct, but that's no different from the Voting Rights Act or from Title VII. . . . You still get the final word on what the statute means.

The lawyers defending RFRA were of course in no position to meet this line of questioning with its proper response: Why shouldn't Congress try to correct or reverse the court? Congress is a co-equal branch of government, equally entitled to interpret the Constitution that governs all three branches. The Religious Freedom Restoration Act may not have been a wise response to a particular judicial decision. But the power Congress used to enact it is legitimate. Lawmakers employed their infrequently used authority to "enforce" the Fourteenth Amendment.

The Fourteenth Amendment's enforcement power unnerves judges, because, as RFRA shows, it can be invoked to challenge their decisions. And it has always unnerved judges. In overturning RFRA, the justices barked back to their 19th- century brethren on the high court who gutted Congress's enforcement power, overturning the national civil-rights statutes of Reconstruction, such as the 1871 Ku Klux Klan Act and the 1875 Civil Rights Act. (With no embarrassment, Justice Kennedy's opinion for the court in Boerne cited those long discredited decisions as precedents.) The modern civil-rights revolution restored Congress's enforcement power, and since the 1960s the court has sanctioned measures that depend on that power, including the Voting Rights Acts of 1965. With one insignificant exception, until the court's actions last month, every law enacted in this century under the Fourteenth Amendment's enforcement provisions has been upheld.

Congress's enforcement power also makes some conservatives uncomfortable because of its potential to expand the power of Washington. RFRA, which limited the powers of state governments, was controversial for that very reason. But there are other ways in which Congress can use its Fourteenth Amendment powers. In fact, it can reassert its right to these powers and at the same time resurrect federalism and popular self-government at the state and local levels against a nationalizing Supreme Court. And in the wake of Boerne, it should do so. Lawmakers can begin with a simple, unobjectionable proposal: legislation returning to the states the right to display the Ten Commandments on government-owned property.