Academic Legal Writing - Eugene Volokh [125]
[¶ 94] Scholars have begun recently to debunk the myth that the courts, and particularly the Supreme Court, have been the great institutional protectors and promoters of civil liberties. In the context of free speech cases, for example, Professor Robert Nagel has argued that “at a minimum, the systemic utility of judicial review in free speech cases has been a matter characterized far too much by convenient assumptions and cheery faith.”284 The federal appellate cases surveyed demonstrate that the same can be said of the court's role in free exercise cases. In this sense, Smith can be seen as providing the final proof that cheery faith in the courts, in this context as in others, is misplaced. Smith simply made obvious what was true all along: courts have done little to aid or protect the religious adherent, and certainly have done less than legislatures.285
[¶ 95] Unfortunately, the support generated by the RFRA illustrates that the real lesson of Smith has not yet been widely learned. It is therefore ironic that this lesson is only made more apparent by the progression thus far of the RFRA. After losing (once again) in the courts, this time losing big, religious groups coalesced and approached Congress for redress. Faced with such a powerful coalition, Congress responded quickly. Their response, however, is schizophrenic. While professing their deep respect for religious freedom, in reestablishing the compelling interest test members of Congress are tossing the issue of free exercise back into the courts, and in a sense saying that they do not trust the political process (i.e., themselves) to protect religion. Yet once in the courts, the free exercise claimant, as documented, is not likely to succeed.
[¶ 96] If the real lesson of Smith is to be useful, those religious groups that have banded together to support the RFRA should drop that effort but remain together to wage other campaigns. They should continue to seek broad based exemptions in specific pieces of legislation, and force legislatures to confront and discuss such exemptions. If the courts need to be relied upon at all, they can serve as useful forums for determining whether a particular religion or religious adherent fits within a statutory exemption. The pursuit of such a strategy, one that entails open discussion of how religion and religious groups should fit within society, holds potential rewards not only for religious adherents but for democratic government as well.
Here, the article tries to connect to broader theoretical debates about the value of courts as protectors of civil liberties (see Part V.F for more on drawing such connections to broader debates). But it does this only in passing.
This is probably a sound approach. It's helpful to explain how the specific findings in this article can be relevant to a more general discussion. And some reference to broader theoretical debates can be impressive to some readers, if it seems well-connected to the article's thesis (as the reference here is).
At the same time, a more elaborate discussion of the theoretical points might be largely repetitive of what the theorists have written (though it might be able to avoid that by focusing closely on the particular findings of this particular article). It would have probably required much more time and effort. And even if it was done well, it probably would not have added as much value as the article itself: A good but probably not terribly novel portion on grand theory would have diluted the strikingly useful and original material on actual religious accommodation decisions. So the Conclusion here is a good example of the author's rightly deciding what to set aside (see Part VI.C for more on this) with just a brief discussion.
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We have spent a good deal of time with this article, but for good reason: Seeing how something is done well can help you do your task well, too. Whatever you're writing about, and however many citations your article is eventually likely to get, you would do well to emulate the innovativeness, organization, clarity, and tone