Boerne....Lane

[Hamilton02 at aol.com]

I think Eugene and Sam are absolutely right here.  There was no question at 
the Boerne oral argument that Justice Ginsburg was eagerly engaged in the 
issue, and not inclined to the view that Congress has plenary power.  With Lane, we 
no longer hear any complaints about the Boerne test (except from Scalia who 
now thinks it's too liberal, but what can you do?).  Indeed, it is worth 
remembering in Boerne that not a single Justice advocated the ratchet-up, broad 
theory advocated by Doug, with the backing of many a law professor.  Not one.  As 
Doug would say after the argument, this was a turf battle.  True.  From Boerne 
to Lane, it's pretty clear that no one on the Court is inclined to give 
Congress effectively unreviewable power.

Marci

Eugene is right to point out the positions of Justices Stevens and
Ginsburg in Boerne.  Sure, I think they thought RFRA was
constitutionally flawed for any number of reasons, but they could easily
have declined to join Justice Kennedy's broadly written majority if they
had wanted to.  What I've always thought about this is that Stevens and
Ginsburg don't want to give Congress a blank check any more than the
"Federalist Five" do.  Maybe they're afraid of abortion or
property-rights legislation, or maybe they just believe in robust
judicial review as an ideological or theoretical matter.  Stevens and
Ginsburg have uniformly been on Congress's side in these cases, aside
from Boerne.  But that's in part because the cases have all come up in
the Eleventh Amendment context, and Stevens and Ginsburg (and Souter and
Breyer) *have* been clear that Congress has a blank check to abrogate
state sovereign immunity.
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