(Ehrlif/Dreamstime)

If judges decide cases based on their personal beliefs, there is no rule of law.

The American people ought to consider the recent oral argument in Zubik v. Burwell, a case regarding religious exemptions from Obamacare’s abortifacient mandate, when considering what type of justice should fill Antonin Scalia’s seat on the Supreme Court. The questions asked by several justices during that argument offer compelling reasons why the American people should reject any nominee who is not dedicated to the textualist method of legal interpretation, and any presidential candidate who might make such a nomination.


President Obama recently summarized the non-textualist view when he indicated that a judge should usually “faithfully apply the law,” but in certain special cases can shape the law based on “his or her own perspective, ethics, and judgment.” That judicial philosophy is problematic because it strips the law of constitutional legitimacy and stability. Both of these deficiencies were on display during the Zubik oral argument.

During that argument, several Supreme Court justices who adhere to the president’s view indicated their willingness to replace the legislatively enacted balance between religious liberty and government power with a balance that conforms to their personal judgment. For example, Justice Breyer asked several questions aimed at finding “the line” that separates cases where religious objectors are entitled to an accommodation from those where they are not. Justice Sotomayor asked the plaintiffs’ lawyers how the Court ought to maintain a balance between a plaintiffs’ request for an accommodation and the ability of the government to function smoothly.

NR EXPLAINER: Little Sisters at the Supreme Court


This line of questioning, which was extensively explored during the argument, highlights the tension between President Obama’s view of the judiciary and constitutional democracy. The justices’ inquiries were interesting philosophical and theoretical questions, but Congress and the president answered them when they passed the Religious Freedom Restoration Act (“RFRA”). If the American people want to revisit those questions, it is a job for the legislature and not the Court.


RFRA states that “government may substantially burden a person’s exercise of religion only if it demonstrates that” doing so is “in furtherance of a compelling government interest” and “is the least restrictive means of furthering that compelling governmental interest.”

In other words, RFRA provides the very balance that the justices were looking for. The government may impose substantial burdens on a religious objector only if it can prove that doing so is necessary to further a very important governmental interest. Justices Breyer and Sotomayor may not like the RFRA balance, but Supreme Court justices are as bound to follow the law as their fellow citizens.

RELATED: Little Sisters, Big Stakes



Those justices, instead, indicated a willingness to flip RFRA on its head and allow the government to impose even the most draconian burden on religious objectors unless those objectors could prove the importance of their religious practices. Justice Sotomayor expressed incredulity that RFRA protects every religious exercise just because religious objectors believe that “their soul will be damned in some way.” Instead of following the law, the non-textualists would reverse RFRA’s balance by plucking the word “substantial” out of its context and reading it in a way that is illogical and unsupported by the text.

Under a commonsense reading of the statute, the word “substantial” refers to the size of the legal burden imposed by the government. For example, if a law requires an Orthodox Jew to choose between working on the Sabbath and paying a fine of one dollar, it has not imposed a substantial burden. But if it requires the same Orthodox Jew to work on the Sabbath or pay a fine of $70 million per year — the actual fine in the Zubik case — it has imposed a substantial burden.

Under the reading proposed by the administration and considered by several justices, the Court would need to determine whether the sin of violating the Sabbath imposed a substantial burden on Orthodox Jews. In their view, Congress used the world “substantial” to mean “theologically substantial” rather than “legally substantial.” This is not the natural reading of the text, and it is unworkable. No one has suggested a coherent legal method for determining theological significance.


#share#Fortunately, the commonsense reading of the statute is also overwhelmingly supported by the rest of RFRA’s text. The law defined “religious exercise” as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” And, as the Supreme Court noted in Hobby Lobby, Congress mandated that RFRA “be construed in favor of a broad protection of religious exercise . . . ” Those legally binding definitions make it impossible to contend that RFRA’s protections exclude all but the most significant religious practices.

RELATED: Is the Supreme Court Going to Argue that Nuns Misunderstand Their Religion?

The statute also answers Justice Sotomayor’s question about how to balance government functionality and religious liberty. RFRA contains a section of congressional findings that states: “The compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” Justice Sotomayor might disagree with Congress’s conclusion; if so, she is free to vote for politicians who promise to change the law. That is how law is made and updated in our constitutional republic.

The justices’ questions also highlight a second problem with the president’s understanding of the judiciary. Allowing judges to interject their personal proclivities makes judicial decisions arbitrary and unpredictable — replacing the rule of law with the rule of men.

RELATED: Free Speech and Religious Liberty Are Under Siege

In Federalist 62, Madison writes that making frequent arbitrary changes to the law threatens democracy and “poisons the blessings of liberty itself.” He notes that democracy is imperiled when laws “undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.” He states that “law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?” Madison was discussing the importance of Congress legislating in a cautious and deliberate manner, but the Zubik oral argument demonstrates that an imprudent Court poses the same, if not a greater, threat.

A citizen who read RFRA and previous Supreme Court cases and therefore “knows what the law is today” would have been shocked to hear the justices proclaim that the law might be different tomorrow. First, he would protest that RFRA clearly answers the justices’ questions regarding which religious exercises are protected. Second, he would protest that the Court has already ruled on the relevant issue in two recent cases — Holt v. Hobbs and Burwell v. Hobby Lobby — and concluded that RFRA means what it says and applies whenever a religious person faces a substantial legal burden for violating his faith.


#related#Why then, he would be left to wonder, might the law be different tomorrow? Congress has not amended RFRA, and no one has put forth a convincing argument that the Court previously misinterpreted its text. The only change that has occurred is Justice Scalia’s death.

The citizen would be forced to conclude that American law is not a fixed set of neutral principles that Americans can depend on in organizing their daily lives. Rather, he would begrudgingly surmise that it is reflective of the will to power of the men and women who sit on the Supreme Court and their subjective opinions and passing whims. That citizen might know the law today, but there would be no way for him to anticipate what the law might be tomorrow.

If America grants the Court such power, it will quickly become a republic in name only. The oral argument in Zubik v. Burwell should serve as a cautionary tale regarding how a Court consisting of justices sharing President Obama’s philosophy would act. The American people still have an opportunity to prevent that calamity, but time is running out.