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T Exas Review A T EXAS REVIEW Of L AW & POLITICS VOL. 20, No. I FALL 2015 PAGES 1-167 JUDICIAL SUPREMACY HAS ITS LIMITS John Yoo JUDICIAL OVERREACH AND AMERICA'S DECLINING DEMOCRATIC VOICE: THE SAME-SEX MARRIAGE DECISIONS Brent G. McCune WHEN CONGRESS SPEAKS, DOES THE SUPREME COURT LISTEN? EVALUATING THE EFFECTIVENESS OF CONGRESSIONAL PARTICIPATION AS AMICUS CURIAE BEFORE THE U.S. SUPREME COURT DURING THE REHNQUIST COURT JudithanneScourfield McLauchlan Thomas Gay RELIGIOUS ACCOMMODATION IN THE WORKPLACE: WHY FEDERAL COURTS FAIL TO PROVIDE MEANINGFUL PROTECTION OF RELIGIOUS EMPLOYEES Debbie N. Kaminer BUT THE CONSTITUTION IS NOT THE PROBLEM Lino A. Graglia SUBSCRIBE TO THE TEXAS REVIEW OF LAW & POLITICS The Texas Review of Law & Politics is published twice yearly, fall and spring. To subscribe to the Texas Review of Law & Politics, provide the Review with your name, billing and mailing addresses. email: [email protected] online: www.trolp.org or standard mail: Texas Review of Law & Politics The University of Texas School of Law 727 East Dean Keeton Street Austin, Texas 78705-3299 Annual subscription rate: $30.00 (domestic); $35.00 (international). ISSN #1098-4577. REPRINTS It's not too late to get a copy of one of your favorite past articles. See the complete list of the Review's past articles at www.trolp.org. Reprint orders should be addressed to: William S. Hein & Co., Inc. 2350 North Forest Road Getzville, NY 14068 TEXAS REVIEW 0 LAw & POLITICS VOL. 20, NO.1 FALL 2015 PAGES 1-167 ARTICLES JUDICIAL SUPREMACY HAS ITS LIMITS John Yoo.................................................................................... 1 JUDICIAL OVERREACH AND AMERICA'S DECLINING DEMOCRATIC VOICE: THE SAME-SEX MARRIAGE DECISIONS Brent G. M cCune .................................................................... 29 WHEN CONGRESS SPEAKS, DOES THE SUPREME COURT LISTEN? EVALUATING THE EFFECTIVENESS OF CONGRESSIONAL PARTICIPATION AS AMICUS CURIAE BEFORE THE U.S. SUPREME COURT DURING THE REHNQUIST COURT Judithanne Scourfield McLauchlan & Thomas Gay............... 79 RELIGIOUS ACCOMMODATION IN THE WORKPLACE: WHY FEDERAL COURTS FAIL TO PROVIDE MEANINGFUL PROTECTION OF RELIGIOUS EMPLOYEES Debbie N. K aminer......................................................................107 BOOK REVIEW BUT THE CONSTITUTION IS NOT THE PROBLEM Lino A. Graglia......................................................................... 157 n. L & a a a e e 4 9 I, p a A BOARD OF ADVISORS Hon. Greg Abbott Hon. Royce C. Lamberth Hon. Bob Barr Prof. Gary S. Lawson Mr. Bradley A. Benbrook Prof. Jonathan R. Macey Mr. Clint Bolick Prof. Gregory Maggs Prof. Steven G. Calabresi Mr. John P. McConnell Prof. Thomas J. Campbell Hon. Edwin Meese III Hon. T. Kenneth CribbJr. Mr. William H. Mellor Hon. R. Ted Cruz Mr. Allan E. ParkerJr. Ms. Susanna Dokupil Mr. Thomas W. Pauken Prof. Richard A. Epstein Prof. Stephen B. Presser Prof. Richard W. Garnett Mr. Keith S. Rabois Mr. Todd F. Gaziano Prof. Michael Rappaport Prof. Lino A. Graglia Mr. Ron Robinson Hon. C. Boyden Gray Mr. M. Sean Royall Dr. Michael S. Greve Mrs. Phyllis Schlafly Hon. Nathan Hecht Mr. Joseph Smith Prof. Russell Hittinger Mr. Daniel E. Troy Mr. MichaelJ. Horowitz Mr. J. Michael Wiggins Mr. Peter Huber Mr. Richard K. Willard Hon. Edith H. Jones Hon. Don R. Willett _..4 .' BOARD OF DIRECTORS Adam B. Ross, Chairman Andrew A. Adams, Secretary Sean B. Cunningham Eric B. Neuman David J. Damiani Keith S. Rabois Dennis W. Donley Jr. Tara B. Ross Scott A. Fredricks Nigel Stark Benjamin B. Kelly Brantley D. Starr David A. Linehan Gary L. Thompson John R. Martin Philip A. Vickers Ryan L. Morris Douglas R. Wilson STEERING COMMITTEE Amy Davis, Co-Chair Brantley D. Starr, Co-Chair Jaimie Ensign Marc Levin Cory Liu John Martin Aaron Streett Articles published in the Review do not necessarily reflect the views of its founders, members, Board of Directors, Steering Committee, or Board of Advisors. The Texas Review of Law & Politics is a conservative law review. Its mission is to be the prime forum for the discussion and debate of contemporary social issues such as crime, federalism, racial preferences, constitutional history, and religious liberties. The Review publishes thoughtful and intellectually rigorous conservative articles-articles that traditional law reviews often fail to publish- that can serve as blueprints for constructive legal reform. The Texas Review of Law & Politics is published two times a year-fall and spring. Annual subscription rates: $30.00 (domestic); $35.00 (international). To subscribe, access the Review's website at www.trolp.org. Back issues are available from: William S. Hein & Co., Inc., Hein Building, 2350 North Forest Road, Getzville, NY 14068, USA; (800) 828-7571. ISSN #1098-4577. The Review welcomes the submission of articles, book reviews, and notes via standard or electronic mail. All submissions preferably should be submitted in Microsoft Word format. When submitting a manuscript through standard mail, please include a copy on a compact disk, along with a hard copy, addressed to: Texas Review of Law & Politics, 727 East Dean Keeton Street, Austin, TX, 78705-3299. When submitting a manuscript electronically, please attach the manuscript to an e-mail message addressed to [email protected]. All rights reserved. No part of this journal may be reproduced in any form or by any means, electronic, mechanical, photocopying, scanning, or otherwise, without permission in writing from the Texas Review of Law & Politics, except by a reviewer who may quote brief passages in a review. Notwithstanding the foregoing, the Review is pleased to grant permission for copies of articles, notes, and book reviews to be made for classroom use only, provided that (1) a proper notice of copyright is attached to each copy, (2) the author(s) and source are identified, (3) copies are distributed at or below cost, and (4) the Review is notified of such use. Copyright 2015, Texas Review of Law & Politics 4 x 4 a i 6 e h a TEXAS REVIEW of LAW & POLITICS VOL. 20, No. 1 FALL 2015 PAGES 1-167 Editor in Chief ALLISON ALLMAN ManagingEditor Chief Manuscripts Editor ANDREW CLARK JEFFREY CHU Executive Editor Executive Editor TIMOTHY ELLIOTT ANN-MARIE WHITE Administrative Editor Submissions Editor CALLIE WILLIAMS BETHANY SPARE Director of Development MICHAEL MOREHEAD Articles Editors NATHAN BLOOM MICHAEL MARIETTA DAVID HOwARD AARON REITZ DANIEL HUNG TERENCE YUNG Senior Staff Editors AMY BEFELD EMMA PERRY MICHAEL DOCKINS BLEDAR QATO RICH HYDE Staff Editors MARK BALFE JARET KANAREK BEN BETNER BEN LANCASTER ALEXANDER BOHN ANDREW MCCARTNEY ALEX CUMMINGS BEN MENDELSON JOEL GARZA ADYWETEGROVE Legal Counsel PATRICK O'DANIEL Faculty Advisor LINO A. GRAGLIA Founded by Adam B. Ross & Dennis W. Donley Jr. in MCMXCVI s 6 4 6 mi m 1 m a 4 m a p i 4 il 11 SUBMISSIONS The Texas Review of Law & Politics welcomes the submission of articles, book reviews, and notes via standard or electronic mail. All submissions should be single-spaced, printed on one side only, with footnotes rather than endnotes. An electronic copy of any accepted manuscript is required. Citations should conform to the Texas Rules of Form (13th ed. 2015) and The Bluebook: A Uniform System of Citation (20th ed. 2015). Except when content suggests otherwise, the Review follows the guidelines set forth in the Texas Law Review Manual on Usage & Style (12th ed. 2011), The Chicago Manual of Style (16th ed. 2010), and Bryan A. Garner, Garner's Dictionary of Legal Usage (3d ed. 2011). Manuscripts submitted electronically should be sent to: [email protected]. Manuscripts submitted via standard mail should be addressed to: Texas Review of Law & Politics The University of Texas School of Law 727 East Dean Keeton Street Austin, Texas 78705-3299 ADVERTISING The Texas Review of Law & Politics is now accepting advertising. We offer the perfect medium to reach a conservative audience interested in contemporary social issues, including crime, federalism, racial preferences, constitutional history, and religious liberties. For more information, please e-mail us at [email protected] or write our Managing Editor at the above address. .. , PREFACE The Supreme Court's latest term demonstrated several unprecedented usurpations of power from the nation's true sovereign-the people. With a landmark presidential election on the horizon, America stands to choose between two futures. Will the people limit government to its intended realm, so that personal freedom and liberty can flourish, providing greater opportunity and prosperity for future generations? Or will we elect leaders with no respect for our founding principles, and take our place as a once-great nation. Serious discussion of the issues is too often lost in the buzz of a presidential election dominated by twenty-second sound bites. The Review continues to stand in sharp contrast to the short-game, hype- driven world of politics, delivering serious legal scholarship chock- full of viable, conservative solutions to the day's most pressing issues. The Review's 2 0 th volume is no exception. Professor John Yoo leads the issue with judicialSupremacy HasIts Limits. In light of Obergefell, Professor Yoo calls for a deeper understanding of the separation of powers to resist the Court's activist decision. He argues that the Constitution denies any one branch the final word on constitutional disputes, and instead demands that each independent branch interpret the Constitution in the course of performing its own unique functions. He then reminds us that some of our nation's greatest leaders understood that, in a self-governing republic, the people, not the courts, must settle fundamental constitutional issues. In that same spirit, Professor Brent G. McCune follows with a thorough analysis of the dangers of judicial activism in Judicial Overreach and America's Declining Democratic Voice: The Same-Sex MarriageDecisions. He discusses the expanded role of the federal judiciary in the context of the same-sex marriage decisions. He concludes that the activist decisions have short-circuited the democratic process, stunted healthy debate on a critical issue, and stifled the voice of the people.
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