I to participated last Fall on a Wisconsin Law Review symposium panel on "Is the Court out of Control?," and I wrote up a short (12-page) article for that. I'm posting it in several pieces; I hope some of you find it interesting, and I also still have time to make any corrections, if need be. Here's the second part (you can also read the first part), which responds to some criticisms of recent Supreme Court decisions:
Of course, there are other things that people might argue should control the Court. Perhaps, for instance, the Court should feel controlled by particular substantive principles, such as equality.
So, for example, some suggest that the Court's new Free Exercise Clause jurisprudence wrongly protects just conservative Christians.[1] But I don't think this is so on the facts (and I say this as a longstanding defender of Employment Division v. Smith[2] and therefore a critic of some of the Court's recent moves towards a broader reading of the Free Exercise Clause[3]). Consider, for instance, the outcomes of the Court's recent religious exemption cases, whether under statutory schemes (RFRA and its sibling RLUIPA) or under the Free Exercise Clause:
