In the Supreme Court’s last term, Justice Antonin Scalia raised eyebrows during the oral arguments in Shelby County v. Holder when he suggested that legislation that was enacted unanimously or near-unanimously should be subject to special constitutional skepticism:

This last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

(Here’s the transcript.) Similarly, a few years earlier in Northwest Austin v. Holder (transcript), Scalia had observed that “the Israeli Supreme Court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.”

I was amused to see that the anti-unanimity principle was invoked again in Tuesday’s oral arguments in the Hobby Lobby case — only this time by Justices Elena Kagan and Ruth Bader Ginsburg, arguing that RFRA’s near-unanimous passage in Congress (97-3 in the Senate, unanimous voice vote in the House) was a basis for reading it more narrowly than one otherwise might:

JUSTICE GINSBURG: Mr. Clement, this was a law that was passed overwhelmingly, both houses of Congress. People from all sides of the political spectrum voted for it. It seems strange that there would have been that tremendous uniformity if it means what you said it means, to cover profit corporations …

And then:

JUSTICE KAGAN: But, again, Mr. Clement as Justice Ginsburg said, this was a very uncontroversial law. Your understanding of this law, your interpretation of it, would essentially subject the entire U.S. Code to the highest test in constitutional law, to a compelling interest standard.


For what it’s worth, I didn’t think much of this argument when Scalia made it, and I don’t think much of the new version, either. It’s perilous to think that the vote total tells us that much about what a statute means. And for the reasons given by Doug Laycock, I think it’s more likely that RFRA’s reflects widespread endorsement of a uniform and abstract test, even while people knew — or precisely because they knew — that it would be impossible to achieve legislative consensus on how that test ought to be applied in every case.

But it is amusing to see the shoe on the other foot.