Conservative Eras in Supreme Court Decision Making: Employment Division v. Smith, Judicial Restraint, and NeoconservatismCardozo Law Review (2011)
AbstractCommentators often describe Employment Division v. Smith as the beginning of a new era in free exercise decision-making. Before Smith, the Supreme Court typically articulated and applied a strict scrutiny standard to resolve free exercise exemption claims. After Smith, the Court deferred to the political process, upholding any reasonable law of general applicability. From a doctrinal standpoint, this description of Smith is perfectly accurate and informative. In this Essay, I argue that from a legal-political standpoint, Smith manifests the culmination of one type of judicial conservatism -- a traditionalist conservatism that had been developing since the 1970s. Judicial restraint and deference to legislative institutions were the interrelated hallmarks of this traditionalist movement. Soon after the Court decided Smith, however, a new form of conservatism began to take hold of the Court. Under this neoconservatism, the aggressive and confident assertion of moral and religious values became as important as judicial restraint, if not more so. Part I of this Essay focuses on the early writings of constitutional scholar Robert Bork as exemplifying traditionalist conservative constitutional theory. Part II discusses how Smith manifests the application of this form of constitutional theory in the realm of the Free Exercise Clause. Part III returns to Bork but focuses on his later writings, which were infused with neoconservative themes. Part IV explores how the post-Smith Court has followed a more neoconservative approach in hybrid free exercise-free expression cases. The Conclusion compares traditionalist and neoconservative approaches of constitutional law, first emphasizing the differences and then the similarities.
- U.S. Supreme Court,
- judicial restraint,
- Robert Bork
Citation InformationStephen M. Feldman. "Conservative Eras in Supreme Court Decision Making: Employment Division v. Smith, Judicial Restraint, and Neoconservatism" Cardozo Law Review Vol. 32 (2011)
Available at: http://works.bepress.com/stephen_m_feldman/16/