William D. Araiza * | 23.4 | Article | Citation: William D. Araiza, Left / Right: Managing the Coming Clash Between Congressional Rights Enforcement and Judicial Doctrine, 23 U. Pa. J. Const. L 713 (2021).

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Beyond the Court’s composition lies its doctrine. Nearly a quarter-century has passed since City of Boerne v. Flores announced a stricter test for evaluating federal legislation enforcing the Fourteenth Amendment. Even though later applications of Boerne’s “congruence and proportionality” standard split heavily along ideological lines, Boerne itself enjoyed broad ideological support on the Court. Even more significantly, Boerne and its subsequent stringent applications appear to have become stable precedent; in 2020, Justice Kagan wrote an opinion for seven justices reaffirming the congruence and proportionality standard, and in particular, one of the closely-divided cases applying that standard, to strike down a copyright law’s application to states. The remaining two justices, who had dissented in that earlier case that Justice Kagan applied, recognized that they had lost the battle and concurred in the result.

The emerging picture thus combines political branches primed to enact significant civil rights legislation with a skeptical Court wielding now-longstanding precedent limiting the enforcement power. This prospect raises important questions about the relationship between the Court and the political branches in the project of safeguarding individual rights. This would not be the first time the political branches have collided with either a Supreme Court majority and/or a body of judicial precedent on individual rights issues. The most famous example of such a collision was the Lochner-era Court’s battle against the New Deal, a tale told many times. To be sure, that battle featured a Court that saw itself as protecting individual rights against assertions of state and federal regulatory prerogatives. But other episodes have featured congressional contemplation of legislative action aimed at protecting individual rights in the face of anticipated conflict with either the Court or its precedent. 

This Article examines four of those episodes to determine what they teach us today, as the nation stands at the threshold of a similar conflict. Part I begins by briefly laying out the doctrinal context—especially, but not only, the Court’s doctrine governing Congress’s power to enforce the Fourteenth Amendment. It then introduces three general approaches Congress might take when seeking to ground civil rights legislation on a firm constitutional foundation despite the existence of a skeptical Court or hostile precedent: challenging unfavorable precedent, avoiding it by relying on a different constitutional power, or arguing that its legislation merely applies that precedent.

Part II considers four instances of congressional deliberation—over what became the 1964 Civil Rights Act’s public accommodations provisions, the private right of action provided by the 1994 Violence Against Women Act, and the 2003 Partial-Birth Abortion Ban Act, as well as thus-far unenacted legislation prohibiting employment discrimination based on sexual orientation (and, in later iterations, gender identity)—to uncover what those debates offer by way of lessons for congressional action over the next several years. Each of these examples confronted a slightly different judicial and doctrinal backdrop to the desired legislative action, and each reflects a different ultimate constitutional strategy settled on by Congress. 

Based on those case studies, Part III evaluates the challenge, avoidance, and application strategies. It concludes that each strategy holds both promise and peril for Congress. In particular, it concludes that, while the application strategy appears the safest and most straightforward, it is by no means foolproof or risk free. Part IV briefly evaluates the implications of Part III’s analysis. It concludes that the risks posed by each of these strategies requires Congress to think long and hard as it deliberates on the proper constitutional foundation for whatever civil rights legislation it is disposed to consider. 

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* Stanley A. August Professor of Law, Brooklyn Law School. Thanks to the editors of the University of Pennsylvania Journal of Constitutional Law for inviting me to their symposium on “Constitutional Law Outside the Courts” and for inviting this related article. Thanks are also due to the participants in that symposium for their stimulating comments on this issue. Finally, thanks to Parker Brown, Derek Knight, and Cody Laska for fine research advice.