“The Constitution… meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” –Thomas Jefferson to Abigail Adams, 1804
In Thomas Jefferson’s analysis a Supreme Court that can decide the constitutionality of laws for all other branches renders it a “despotic branch.” Certainly many would agree that the Supreme Court has become far more powerful than envisioned by the framers who sought a balance of power between co-equal branches. As the Court acts to overturn congressional and presidential action, many lament that the only seeming check on the court is the selection of the justices themselves. However, the recent Hobby Lobby case pulls back the curtain on a significant area of congressional power that can limit court action.
In the recent Supreme Court case of Burwell v. Hobby Lobby, the Court decided in a 5-4 decision that Hobby Lobby’s religious freedom in deciding not to cover certain birth control treatments through its employee health care plans is protected under the 1993 Religious Freedom Restoration Act (RFRA). Congress passed RFRA in order to reverse a previous court decision in the 1990 case of Employment Division v. Smith. In the Smith case the Court declined to acknowledge Native American ritual use of peyote as protected under the Free Exercise Clause of the First Amendment. The decision seriously narrowed the “compelling interest” doctrine where the Court previously placed a high burden on government regulations that threaten religious practices. In response, Congress—in a nearly unanimous vote—passed RFRA to statutorily require that strict scrutiny be used by the Court in assessing government action that burdens a person’s exercise of religion. That statute played a key role in the Court’s decision for the Hobby Lobby case as justices acknowledged that RFRA protects against substantial government burdens on the free exercise of religion by closely held for-profit corporations.
While proponents of the Affordable Care Act’s mandates on employer coverage are outraged at the thought that Congress cannot micromanage the employee benefit decisions of private employers on account of religious beliefs, they should remember that it was also Congress who decided to protect religious liberty long before it sought to micromanage employer sponsored health care plans. The important distinction here is that the latter is a protection against government power while the former is an expansion of it.
The amazing thing about the Hobby Lobby case is how the Court managed to avoid schizophrenia amidst competing instructions from Congress. The Court avoided activism by deferring to the elected representatives to say what the law is. In this case, Congress acted clearly over two decades ago when it passed RFRA. The Court merely acknowledged that and appropriately deferred to it. In the majority opinion, the Court stated that “RFRA was designed to provide very broad protection for religious liberty. By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required” (emphasis added).
The real victory here is that the U.S. Supreme Court, with seemingly unlimited authority to lay waste to the powers of the other branches of government, can actually be reined in by clear action from Congress—particularly when Congress acts to protect constitutional liberties even if such protections go “far beyond” what the Court has held is constitutionally required. This result illustrates the theory that the Court creates a “floor” or minimum standard of protection for constitutional liberties. However, this does not preclude Congress from statutorily raising the standard of protection for liberty or increasing limits on federal power.
Those who are concerned that the Court too frequently defers to government authority in constraining constitutional liberties should now point their fingers at Congress. Hobby Lobby is a shining example of how Congress can be the most powerful branch of government if and when it acts within constitutional powers to protect liberty. If you care about the protection of constitutional rights do not lament Supreme Court decisions—focus your attention on Congress to raise the standard.
For those that favor expansive government powers, the idea of a Congress willing to elevate constitutional liberty and constrain federal power is scary. In fact, opponents of RFRA lamented this power of Congress in an amicus brief comparing such laws to full constitutional amendments that should require heightened procedural conditions for passage. They argue that the Court has the sole role of interpreting the Constitution—a misguided claim that ignores the intentions of the founders. Thomas Jefferson, for example, disagreed strongly with the idea that the Supreme Court is the sole arbiter of the Constitution:
To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.
By crowning the Court as sole arbiter of the Constitution to the exclusion of Congress’ ability to limit federal power, you create a backstop against which growing federal authority cannot be easily stopped. If Congress has the ability to expand government power it should also be able to retract it. In their amicus brief, opponents of RFRA claim that it “is a formula that would make it possible for Congress to meddle with any constitutional doctrine and decision, and move the Court to the sidelines by simple majority votes.” This point ignores the basic concept that the Constitution creates a floor against which laws designed to limit constitutional protections could be found unconstitutional. In an effort to maintain progressive expansion of federal power, the statists want to scare us into thinking that critical constitutional protections could be eliminated by majority vote. Such is not the case. RFRA is not a case of erosion of liberty but a protection of it. It constrains federal power rather than expanding it. Unfortunately for statists this runs counter to their goal.
Statutory limits on federal power are not the only way in which Congress can limit the Supreme Court. Congress also has the ability to directly regulate the jurisdiction of the Court. They can regulate the jurisdiction of the inferior federal courts and make exceptions and regulations to the appellate jurisdiction of the Supreme Court. In fact, Congress could go as far as to remove entire categories of cases from the Court’s jurisdiction completely. This idea of jurisdiction stripping could shift legal questions, such as abortion, to the domain of the states with federal courts declining categories of cases as limited by Congress.
A similar model is available at the state level where legislatures are free to enact laws that limit state power and require more deference by government to the rights of citizens. With a strong legislature that is willing to protect liberty there is no fear of despotism by the court. The Hobby Lobby decision is a welcome view of appropriate deference to congressional action. Our concern, of course, is when congressional action does not conform to constitutional limits. We believe that laws using legislative authority to limit state power and increase protections for individual liberties are beneficial and welcome, while those that expand the state at the expense of liberty should be opposed.