Judicial Review and the Religion Clauses: A Response to Professor Greenawalt

Loyola of Los Angeles Law Review 32:1 (November 1998).

At the heart of Professor Greenawalt’s understanding of the religion clauses is the idea that individuals and minorities need, and are entitled to, the protection of courts exercising fairly broad discretion to invalidate, or exempt members of minority faiths from, laws enacted by majorities that are hostile or, at least, insensitive to their legitimate interests. This idea is widely shared in the culture and, especially, in the legal academy, where it enjoys the status of something like an orthodoxy. I do not suggest that it is a foolish or dishonorable idea. I have certainly felt its attraction myself.

Indeed, it is easy to think of instances in American history when courts have come to the aid of oppressed or exploited individuals or members of minority groups. It is, however, also easy–all too easy–to recall cases in which courts have come to the aid of their oppressors or exploiters–cases in which the institutions of democratic governance at the state and federal level were effectively disabled by judges from preventing or rectifying injustices. Our nation’s experience with judicial review confirms the adage, “the power to do good is the power to do evil.” Yes, thankfully, there was a Brown v. Board of Education;’ but there was, alas, also a Dred Scott v. Sandford. Yes, there was a Pierce v. Society of Sisters and a West Virginia State Board of Education v. Barnette; but there was also a Lochner v. New York and an Adkins v. Children’s Hospital.

Loyola Marymount University [pdf]