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 …
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.