Harvard Law & Policy Review

volume 9.1

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Conservative Judicial Activism: The Politicization of the Supreme Court Under Chief Justice Roberts

To mark the release of Volume 9.1, Notice & Comment will be highlighting each of the articles in its own blog post. Today’s featured article: Senator Sheldon Whitehouse’s Conservative Judicial Activism: The Politicization of the Supreme Court Under Chief Justice Roberts. Senator Whitehouse (D-RI) writes:

A troubling and unmistakable trend has developed over several decades, and accelerated in recent years, of extreme judicial activism within the conservative bloc of Justices on the Supreme Court—reaching a new pinnacle under Chief Justice John Roberts.

The Court’s recent activism has advanced a pro-corporate agenda at the expense not only of injured Americans, but also of fundamental democratic institutions. The Court has exposed our elections to corruption and eroded fundamental protections, such as access to the ballot box. It has weakened the role of the civil jury, a constitutional institution intended to ensure equal- ity before the law and an important check in our unique American system of separated powers. The price of the Court’s corporate agenda has been high.

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This is admittedly a harsh indictment of the conservative activists. The purpose of this article is to provide a bill of particulars supporting that charge—showing that the patterns to their decisions, and the strategies employed to achieve their results, suggest intentional and purposeful activism. This article will explore the means by which Chief Justice Roberts and the conservative bloc have furthered their agenda—including selective adherence to traditional conservative principles, advance strategic planning to shape policy, and a failure to promote consensus—and describe how the ends promote corporate and ideological interests at the expense of our democracy.

In light of the major issues before the Supreme Court right now, such as King v. Burwell on the subsidies in the Affordable Care Act, Senator Whitehouse’s concerns are especially relevant. Give it a read today!

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Religious Freedom and (Other) Civil Liberties: Is There a Middle Ground?

To mark the release of Volume 9.1, Notice & Comment will be highlighting each of the articles in its own blog post. Today’s featured article: Professor Abner S. Greene’s Religious Freedom and (Other) Civil Liberties: Is There a Middle Ground? Professor Greene, who is the Leonard F. Manning Professor at Fordham Law School, writes:

The question will always be in the details: How do we evaluate the need for uniform enforcement versus the need for accommodation? To insist on one or the other to the extreme is to insist on the truth of one’s position in a way that threatens a certain kind of fundamentalism, a sureness of one’s position, which is improper both as a matter of political theory and as a matter of constitutional law. In the remainder of this article, I first discuss contemporary works by intellectual historians, each of whom resists the kind of pluralism I advance. I then criticize Ronald Dworkin’s final book for adopting both too expansive a view of religion and too narrow a view of how to protect it. Next, I evaluate the Court’s holding in the most recent religious accommodation case, Hobby Lobby, admiring its concern for such accommodation but critiquing its treatment of whether the law in question places a substantial burden on religious practice. Before concluding, I offer some brief thoughts on whether we should exempt from anti-discrimination law small business owners who object on religious grounds to providing services to same-sex couples in the setting of weddings or other commitment ceremonies.

Like several other articles previously featured on Notice & Comment, Professor Greene’s article is particularly relevant in light of the recent controversy in Indiana. Give it a read today!

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The Case for Evidence-Based Free Exercise Accommodation: Why the Religious Freedom Restoration Act Is Bad Public Policy

To mark the release of Volume 9.1, Notice & Comment will be highlighting each of the articles in its own blog post. Today’s featured article: Professor Marci A. Hamilton’s The Case for Evidence-Based Free Exercise Accommodation: Why the Religious Freedom Restoration Act Is Bad Public Policy. Professor Hamilton, who holds the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, writes:

In this article, I will first describe the Supreme Court’s Constitution-based religious accommodation jurisprudence before the first RFRA statute was enacted. Second, I will describe RFRA’s features and enactment, which violate widely-accepted principles of transparency. Third, I will describe the negative unintended (and intended) consequences of RFRA. Finally, I will propose an evidence-based approach to religious accommodation, which is a superior process for achieving sound public policy and the common good. In a nutshell, my proposal requires two initial steps: (1) repeal RFRA and, therefore, (2) return free exercise cases to the Court’s longstanding First Amendment jurisprudence, which provided ample room for legislative and executive accommodation involving a specific practice and a specific law. Once these legal repairs have been accomplished, the accommodation process should strive for greater accountability and transparency, meaning that legislators would take a more responsible position on the potential impact of the proposed accommodation by ascertaining: (1) the laws to be affected; (2) who is seeking to avoid their obligations under the law and for what practice; (3) who would be harmed by the proposed accommodation; and (4) the views of experts in the field and the public. The bottom line is that the federal and state RFRAs have been passed through ignorance, with only religious organizations knowing what laws they intend to break with a RFRA. Legislators have an obligation to all of their constituents, religious or not, and particularly to those they might be harming unknowingly. The proposal in this article is intended to create a more just process and one that shields victims of religious conduct, of which there are many.

Like several other articles previously featured on Notice & Comment, Professor Hamilton’s article is particularly relevant in light of the recent controversy in Indiana. Give it a read today!

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The Satanic Temple, Scott Walker, and Contraception: A Partial Account of Hobby Lobby’s Implications for State Law

To mark the release of Volume 9.1, Notice & Comment will be highlighting each of the articles in its own blog post. Today’s featured article: Kara Loewentheil’s The Satanic Temple, Scott Walker, and Contraception: A Partial Account of Hobby Lobby’s Implications for State Law. Ms. Loewentheil, a Research Fellow and Director of the Public Rights/Private Conscience at Columbia Law School, discusses the extreme interpretations of the Supreme Court’s Hobby Lobby decision that appeared in the media right after the decision was announced and tries to clarify the scope of the decision. Ms. Loewentheil writes:

In this article, I demonstrate that Scott Walker’s Administration and The Satanic Temple have more in common than it might superficially appear. In fact, there are three common threads that tie their seemingly diametrical efforts together. First, both Scott Walker’s Administration and The Satanic Temple read Hobby Lobby too broadly. Rather than creating an era of religious exemptions on demand, Hobby Lobby should be read to have a limited impact on state and federal law, even as persuasive authority. Second, both Scott Walker’s Administration and The Satanic Temple fail to appreciate the continuing relevance and impact of many other state and federal laws that continue to provide protection for reproductive rights, including contraceptive access. Third, Scott Walker’s administration and The Satanic Temple share a common strategy of attempting to use claims of religious objection to regulation affecting women’s reproductive rights as a tool for political mobilization of their respective—and antithetical—political communities. In this, however, they are closer to the mark: Hobby Lobby does open up new possibilities for claims of exemption. Politically conservative exemptions have been well-represented in the social, political, and legal discourse around the Hobby Lobby fallout. But what has been less appreciated is that however open the regime is for culturally conservative religious objections, it is equally open for progressive religious objections as well.

In tracing these three common threads between Scott Walker and The Satanic Temple, the purpose of this article is both analytic and descriptive. Analytically, it seeks to unearth the serious point behind The Satanic Temple’s seemingly facetious accommodation campaign: conservatives do not have a monopoly on accommodation. Progressives, too, can look to religious objection claims under RFRA as a means of effecting change in the legal system. For these efforts to be effective, however, we have to be clear— descriptively—about what Hobby Lobby does and does not do.

As the courts continue to hear cases regarding the implications of Hobby Lobby (such as Wheaton College v. Burwell), Ms. Loewentheil’s contribution continues to be timely and insightful. Give it a read today!

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A New Era of Inequality? Hobby Lobby and Religious Exemptions from Anti-Discrimination Laws

To mark the release of Volume 9.1, Notice & Comment will be highlighting each of the articles in its own blog post. Today’s featured article: Alex J. Luchenitser’s A New Era of Inequality? Hobby Lobby and Religious Exemptions from Anti-Discrimination Laws. Mr. Luchenitser, Associate Legal Director for Americans United for Separation of Church and State, discusses the aftermath of the Supreme Court’s Hobby Lobby decision and its implications for the federal RFRA (and, by implication, state RFRAs). Mr. Luchenitser writes:

There are many options for repairing RFRA. For-profit businesses could be precluded from making claims under the statute. RFRA’s “substantial burden” requirement could be reinvigorated. The “least restrictive means” analysis could be rendered more deferential to the government. Specific statutes could be excluded from RFRA’s grasp. All the foregoing alternatives have drawbacks, however.

The soundest way of ensuring that Hobby Lobby does not open the door to private discrimination or other impositions of religious beliefs on persons who do not share them would be to specifically exclude from RFRA’s coverage requests for exemptions that would impose nontrivial burdens on third parties. Such an amendment would provide the most effective protection against future court decisions that—in the name of religious freedom—abridge such freedom instead of preserving it.

Like Professor Tebbe’s article, previously featured on Notice & Comment, Mr. Luchenitser’s article sheds some light on the recent controversy in Indiana and how we might avert potential subsequent controversies. Give it a read today!

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Religion and Marriage Equality Statutes

To mark the release of Volume 9.1, Notice & Comment will be highlighting each of the articles in its own blog post. Today’s featured article: Professor Nelson Tebbe’s Religion and Marriage Equality Statutes. Professor Tebbe, a visiting professor at Cornell Law School, writes:

To date, every state statute that has extended marriage equality to gay and lesbian couples has included accommodations for actors who oppose such marriages on religious grounds. Debate over those accommodations has occurred mostly between, on the one hand, people who urge broader religion protections and, on the other hand, those who support the types of accommodations that typically have appeared in existing statutes. This article argues that the debate should be widened to include arguments that the existing accommodations are normatively and constitutionally problematic. Even states that presumptively are most friendly to LGBT citizens, as measured by their demonstrated willingness to enact marriage equality laws, have included provisions that may well retrench on civil rights principles in ways that are significant but underappreciated. Especially at a moment when marriage equality is moving into jurisdictions that are even more concerned with preserving religious freedom, arguments against existing accommodations should be made available.

Professor Tebbe’s article is particularly relevant in light of the recent controversy in Indiana. Give it a read today!