The Spring 2021 issue of the Harvard Journal of Law and Public Policy is now published, with two principal articles:
Revisiting Smith: Stare Decisis and Free Exercise Doctrine by Branton J. Nestor
Who Determines Majorness? by Chad Squitieri
From the introduction to the second:
Do federal courts have the constitutional authority to definitively determine questions of politics? The answer would appear obvious: No. Separation-of-powers principles mandate that the judiciary play no direct role in the political process. Instead, federal courts are limited to faithfully applying the outcome of the political process (i.e., law) to particular sets of facts. Peculiar then is the major questions doctrine, which calls on courts to determine policy questions’ “economic and political significance.”
The major questions doctrine is said to do one thing but in practice does another. What is more, at least two sitting Supreme Court Justices have proposed strengthening the major questions doctrine so that it does something else entirely. Both of those Justices are committed textualists. The present moment thus calls for a thorough explanation as to why textualists should reject the major questions doctrine—including what the doctrine is said to be, what the doctrine actually does in practice, and what the doctrine might soon become.
And from the first:
The Supreme Court held in Employment Division v. Smith that the Free Exercise Clause does not generally protect religiously motivated conduct from neutral laws of general applicability. That holding, although good law, remains controversial, with many scholars and judges now asking whether, if Smith was wrong, it should be overturned. Wading into this debate, this Article suggests that one common stare decisis consideration—a precedent’s consistency with related decisions—likely cuts against retaining Smith, at least to the extent that Smith’s holding and rationale are compared to the Supreme Court’s broader approach to the Religion Clauses. This Article first argues that Smith broke from prior Free Exercise Clause precedent and that, although Smith remains good law, it is in tension with many strains of Free Exercise Clause precedent today. This Article next argues that Smith is in tension with the ascendant focus on text, history, and tradition that has become increasingly central to contemporary Establishment Clause doctrine. While this Article does not fully resolve Smith’s stare decisis fate, it suggests one important weakness confronting any attempt to defend Smith on stare decisis grounds—with that weakness, and the doctrinal tensions it reveals, pointing the way toward how to reform contemporary Free Exercise Clause doctrine to better account for the text, history, and tradition of the Religion Clauses.
Posted at 6:22 AM