For those who remember things like this, Justice Ginsburg joined the majority opinion in Boerne v. Flores, finding that RFRA was unconstitutional as applied to the states. But, the opinion also found that, as the Court stayed it in Hobby Lobby, “By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required.” Justice Ginsburg, in her dissent, disagreed with that characterization, strenuously.
Justice Alito called out RBG for her flip-floppery.
Although the author of the principal dissent joined the Court’s opinion in City of Boerne, she now claims that the statement was incorrect.
Richard Re aptly points out that this is an instance of the “you, too!” fallacy.
RBG replies, in kind, that she was wrong, and has since learned the way.
The Court points out that I joined the majority opinion in City of Boerne and did not then question the statement that “least restrictive means . . . was not used [pre-Smith].” Ante, at 17, n. 18. Concerning that observation, I remind my colleagues of Justice Jackson’s sage comment: “I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.” Massachusetts v. United States, 333 U. S. 611, 639–640 (1948) (dissenting opinion).
RBG is Boerne again on RFRA.
Update: I think Justice Ginsburg gets Justice Jackson wrong. Here is the full quotation, in context from Massachusetts v. United States.
The Court’s opinion, however, goes to some lengths to show that the Court as a whole and without dissent on this point has become committed to the interpretation it adopts, and by unusual deference to the doctrine of stare decisis declares itself bound hand and foot to full federal priority. I am unable to detect the commitment which the Court so clearly sees. But if I have agreed to any prior decision which forecloses what now seems to be a sensible construction of this Act, I must frankly admit that I was unaware of it. However, no rights have vested and no prejudicial action has been taken in reliance upon such a ruling. It does not appear to have been called to the attention of Congress and in effect approved by failure to act. Under these circumstances, except for any personal humiliation involved in admitting that I do not always understand the opinions of this Court, I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.
Justice Jackson claims he wasn’t aware of a previously incorrect interpretation of a statute. RBG must have been aware of it. She is just admitting that she was wrong then. She offers no reason why she changed her mind. And, unlike the situation with Jackson, there have been serious reliance interests on the interpretation of RFRA in Boerne. There have been “Vested” rights. And Congress did act on it, in the form of the RLUIPA. She grasps at Jackson’s prose, but misses his logic.