Prof. Levine’s article suggests that, taken together, judicial rulings and rhetoric during the July 2020 religious gathering SCOTUS cases demonstrate that the “hands-off approach” to religious practice and belief cases remains, at once, both vibrant and vulnerable. These cases offer a poignant example of the difficulties the hands-off approach imposes on judges when the proper resolution of a case seems to require, at least in part, a measure of inquiry into the substantive doctrine underlying a religious practice.

Over the years, the Court’s decisions have become more complex, making it difficult and time-consuming for anyone outside the professional elites to determine what the Court has held. Profs. Sullivan and Feldbrin argue that it would be beneficial for the Court to engage with the public and make its decisions more accessible.

This Article challenges the premise Congress must take such a passive approach to judicial review, expressing policy preferences in seriatim fashion (and being “sent back to the drawing board” each time a policy fails). This approach merely reflects institutional habits. And by failing to question these habits, reformers forfeit an enormous amount of legislative power.