“Increasingly Out Of Touch”: Hobby Lobby Shows The Need For A More Diverse Supreme Court
The United States Supreme Court ended its most recent judicial term this week in a characteristically dramatic fashion. The Court often leaves the most contentious and controversial cases to be decided last, and this year was no exception. A deeply divided Court split 5-4 over the hashtag-friendly Burwell v. Hobby Lobby case, an innocuous name that perhaps doesn’t accurately reflect the polemical questions which lie at the heart of the Justices’ deliberations, namely striking the appropriate balance between religious conviction and access to contraception.
The impact of the decision cannot really be known until the United States’ relatively new national health insurance scheme (aka ‘Obamacare‘) has been fully implemented. In essence, the Justices ruled that a specific subset of corporations — those that are ‘closely-held,’ which often means small and family-owned — could not be compelled to provide insurance coverage for certain methods of birth control if the owners of such companies judged such coverage to be ‘incompatible’ with ‘sincerely-held’ religious beliefs. However, the Court suggested that United States government could step into the breach and provide coverage as necessary.
To non-American audiences, the outrage that this decision has provoked may seem bewildering. Yet the ruling affects three things that are cultural touchstones in the United States: access to health insurance (or the lack thereof), religious freedom, and reproductive rights. The dissenting justices opined that it was a decision of ‘startling breadth’, which might essentially legalise future discriminatory practices by corporations, so long as they claimed a violation of their convictions. This may or may not prove to be the case; nonetheless, additional legal challenges to Obamacare’s provisions are a foregone conclusion.
Of perhaps more immediate relevance than trying to guess at the decision’s eventual impact is speculative analysis of the Justices’ motivations. The companies which brought suit in the Hobby Lobby case are run by people who identify with conservative Christian ideologies. The five male Justices who made up the majority in the case all identify as Roman Catholic, and are 59 years of age or older. There is no way to know how much their personal beliefs inform their decisionmaking in this particular case, but it’s not implausible to suggest a correlation. It is reasonable to wonder if the Court would have split on similar lines had the religious convictions under examination been Muslim, Jewish or Mormon.
The Court’s three female Justices found themselves in the liberal minority on the case, as they often do with decisions that touch upon hot-button cultural issues. It was predicted that they would vote in favour of unimpeded access to contraception, and it’s easy to dismiss their votes as influenced simply by gender — after all, birth control is still seen largely as a woman’s responsibility, however inequitable this may be. This is unquestionably an over-simplified analysis, and yet it is sure to be expressed. More interesting by far is to hypothesise how the case might have been decided differently if the medication at the heart of the controversy were indicated for treatment of a distinctly male condition. If someone’s ‘sincerely-held’ religious beliefs prevented them from providing insurance coverage to treat erectile dysfunction, would the Court’s majority have been similarly composed?
Such provocative questions matter. Supreme Court Justices are appointed for life. While this is supposed to save them from the undignified political posturing and short-term thinking that Americans have come to loathe in their Congressmen and Senators, it can also saddle the Court with Justices whose personal opinions have not kept pace with the ever-evolving beliefs of its citizens. Nevertheless, as there are septuagenarians on both sides of the Court’s ideological divide, both conservatives and liberals have an incentive to keep their favourites around as long as possible.
America’s demographics are changing rapidly, and its younger generations do not generally hold one easily identifiable set of beliefs marking them as either ‘progressive’ or ‘traditional’. Going forward, the Supreme Court will find itself increasingly out of touch if it continues to make decisions that primarily reflect the viewpoint of Christian Caucasian males nearing retirement age. Justices would do well to consider that as they begin their summer vacations. The world may look very different by the time the Court begins again in October.
By: Hilary Stauffer, Visiting Fellow, London School of Economics, Centre for the Study of Human Rights; The Huffington Post Blog, July 4, 2014
“Supreme Anointment Court”: Sheltered From Sun And Light In Our Nation’s Holiest Building
True Blood, the magic, devilish, vampire TV world of shape-shifters where blood is a bottled commodity to drink in a bar and extreme graphic violence and sex is recklessly paired will finally have the stake driven into its heart and exit at the conclusion of this seventh season.
I remember the show’s big surprise lesson from season one that no matter how scary and powerful, vampires cannot enter your home without being invited. However, there is no end in site of the bad true bloody struggles between the five conservative and four liberal justices of our Supreme Court, and no matter how societal changing a Court decision is, the public mostly never gets invited in, never gets to be witness to these omnipotent secret cultish figures dressed in robes sitting elevated and fortressed behind sacred wood protected in their house from uninvited intruders while drinking their own ideological dogmatic “blood.” We never get to see their clever shape-shifting after taking up the bar forever in residence chambered and sheltered from sun and light in our nation’s holiest building. We never get to experience these high priests of the constitution experiencing the life we live that they interpret for us. We never get to see whose influential blood and money they drink that becomes the magic elixir of their last words that toss the ingredients of our melting pot. We never get to see their expressions as indicators of how bad the blood between them might really be as they depart company after each session to take solace and recharge in their secluded coffined off chamber.
Throughout much of our history, we have mostly accepted, obeyed, revered and patiently waited with undying respect for the Court’s directives. We knew they knew better what was better for our society. For Americans, this was the place where evil, malice, patronage, cronyism, politics, and the compromising inducements of avarice and greed humans are so easily soiled by held to a higher standard that truly defined how great a system ours was. We hardly ever get to see this side of the court any more. Just as divided and unpredictable as the world depicted in True Blood, the Supremes on the Court dominated by extremist conservatives are driving the stake into the disunited states of America.
Recent polling supports the perception of a society absolutely at odds with all forms of government. The Supreme Court has lost the confidence of Americans. We are now adrift without a moral compass, without checks and balances, without a credible mandate voice in any of our three plus media equals four branches of government. A majority of voters elected President Obama twice with such a mandate. But increasingly, we are witnessing a court that has anointed itself as representative to its secreted world to drive The Stake to drain the blood of Obama-ism. What after-world can and will emerge in such a divided state and in what state of health and personhood will each of us be in at that time? As we do get to witness many hot spots around the globe descend into horror, can we save America and ourselves?
By: Allen Schmertzler, The Huffington Post Blog, July 3, 2014
“Just Something To Think About”: 15 Major Decisions This Year From A Partisan Supreme Court
Since Monday’s dramatic Supreme Court decisions, I’ve seen a few people recall that back in 2000, a lot of liberals justified voting for Ralph Nader (or not voting at all) on the basis that there wasn’t a dime’s worth of difference between George W. Bush and Al Gore. Bush appointed John Roberts and Samuel Alito to the high court, and it’s safe to say that Gore’s nominees would have been somewhat different, so it’s unlikely we’ll be hearing that argument again. Wherever you place your priorities in terms of the actions of the executive branch, at this point in history, the nominating of Supreme Court justices has become extremely partisan, in a way that isn’t necessarily bad.
What I mean is that whatever the preferences of a particular president, his or her nominee will have to fit within a predictable mold set by the president’s party. For Republicans, that probably means someone who served in a previous Republican president’s Justice Department (as both Roberts and Alito did in Reagan’s), is a member of the Federalist Society, may have done some corporate work on the side, and spent a few years issuing safely conservative rulings on an appellate court. For Democrats, it probably means someone who is an academic (like Elena Kagan), or if not, someone whose record on the bench gives a clear indication of their leanings (like Sonia Sotomayor)—and is more likely to be a woman or a member of a racial or ethnic minority.
As George W. Bush found out when he tried to nominate his good buddy Harriet Miers, the president’s party won’t tolerate someone without a clear record—they want to be sure that they’ll get exactly what they expect from a justice. That means that there will be no surprises for anybody (not that people can’t be fooled a little bit; with a friendly smile, a soothing voice, and some patently disingenuous baseball metaphors, John Roberts convinced a lot of Democrats he might be something other than the intensely ideological justice he has been).
As I said, this isn’t necessarily bad; a justice like David Souter who surprises everyone is only pleasing if the surprise works to your side’s benefit. But now that the Supreme Court’s term has ended in dramatic fashion, it’s worth taking a moment to look back on what they did over the past year, in case anyone is harboring any lingering doubts about the importance of the Court. Here are some of the major decisions, and a quick glance at them shows just how much impact the Supreme Court has on all of our lives:
- McCutcheon v. FEC: The law limiting the total amount a donor can give to multiple political candidates was struck down.
- Schuette v. Coalition to Defend Affirmative Action: Michigan’s law banning affirmative action at state universities is constitutional.
- EPA v. EME Homer City Generation: The EPA’s rules curtailing air pollution that travels from one state to another are constitutional.
- Greece, NY v. Galloway: Local officials can open public meetings with sectarian prayers.
- Hall v. Florida: Florida’s rule that anyone with an IQ over 70 can be executed is unconstitutional.
- Wood v. Moss: The Secret Service was justified in moving protesters opposed to the president farther from where he was having lunch than protesters supporting the president.
- Abramski v. U.S.: “Straw purchases” of guns are illegal.
- Lane v. Franks: A whistleblower can’t be fired for testifying in court.
- Utility Air Regulatory Group v. EPA: The Environmental Protection Agency’s ability to regulate greenhouse gas emissions is upheld.
- Riley v. California: Police need a warrant to search your cell phone.
- ABC v. Aereo: Aereo’s model of streaming over-the-air broadcasts to subscribers was declared illegal.
- McCullen v. Coakley: A 35-foot buffer zone to prevent harassment outside abortion clinics was struck down.
- NLRB v. Canning: The president can’t make recess appointments during pro forma Senate sessions.
- Harris v. Quinn: Home health care workers paid by the state don’t have to contribute to unions that negotiate on their behalf.
- Burwell v. Hobby Lobby: “Closely held” companies can deny their employees health coverage for contraception.
These are just some of the 74 opinions the Court delivered during this term. They range over a broad swath of commercial, political, and personal activity. And while there were a few cases where the Court was unanimous, as a general rule the more important a case is, the more likely there is to be a partisan division whose outcome is determined by who appointed the current nine justices.
Three of the current justices (Scalia, Kennedy, and Breyer) are in their 70s, and one (Ginsberg) is in her 80s. The next president, particularly if he or she serves two terms, is probably going to have the opportunity to reshape the Court for decades to come. Just something to think about.
By: Paul Waldman, Contributing Editor, The American Prospect, July 1, 2014
“John Roberts, Abysmal Failure”: How His Court Was Disgraced By Corporations And Theocrats
It wasn’t quite March 6, 1857, or Dec. 12, 2000, but make no mistake: June 30, 2014, was not a good day for the U.S. Supreme Court. Not simply because it saw the court once again unveil two major decisions decided by a slim majority along partisan lines, but because the argument offered by the majority in the more controversial and closely followed of the two decisions was so conspicuously unprincipled that it will almost surely further erode public confidence in the nation’s highest court. As a Gallup poll also released Monday morning showed, it was already low; I bet it’s about to sink even lower.
In order to understand why Monday was such an important — and unfortunate — day for one of the United States’ most hallowed institutions, it’s necessary to revisit something Chief Justice John Roberts said in an interview way back in 2006. After crediting John Marshall’s legendary diplomatic skills for maintaining the unity and establishing the credibility of the court during its crucial early years, Roberts argued that, after 30-odd years of discord and squabbling, the Supreme Court was “ripe for a similar refocus on functioning as an institution” rather than as a collection of individuals with their separate politics, prejudices and philosophies. If the court failed to come together under his leadership, Roberts warned, it would “lose its credibility and legitimacy as an institution.”
Remember now, this was in 2006, when 5-4 splits on major, hot-button decisions was not yet the norm. This was before Parents Involved in Community Schools v. Seattle School District No. 1, before National Federation of Independent Business v. Sebelius, and before Citizens United v. Federal Election Commission, that ultimate embodiment of the partisan rancor and ideological polarization that’s so defined the Roberts-era court. It’s weird to think of the era of President Bush, Vice President Cheney and Senate Majority Leader Bill Frist as the good old days, but when it comes to the Supreme Court in the modern era, it more or less was.
Cut to today, and it’s hard to conclude that John Roberts is, by the standards he established in 2006, anything more than an abysmal failure. More than at any time since perhaps the Lochner Era, the court is not only seen as a political actor, but is considered a particularly ideological and combative one at that. Far from ushering in an era of good feelings, Roberts has presided over a court that is at war with itself, one in which justices like Antonin Scalia on the right, or Ruth Bader Ginsburg on the left, have become partisan heroes whose writings are studied not for their analytical insight but rather to see if they offer any good lines for use as weapons in the Internet’s endless partisan wars. And the public has noticed: In 2005, Gallup asked Americans how much confidence they had in the Supreme Court: 41 percent said “a great deal” or “quite a lot.” That number today? A paltry 30 percent.
It’s in this context that Monday’s two big rulings — Harris v. Quinn and Burwell v. Hobby Lobby Stores, Inc. — are most properly understood. While it’s true that many of the decisions handed down by the court this summer were unanimous, that harmony was never going to be enough to counterbalance the effects of the court’s two most closely watched decisions coming down, once again, as 5-4 splits. For one thing, the unanimous rulings Roberts engineered were far more internally divided than the 9-0 end results would lead you to think. For another, the public’s ability to follow or remember Supreme Court rulings is rather limited, which means that when it comes to public perception of the court, it’s the big deal decisions like Citizens United or Hobby Lobby that really count.
So when Justice Alito, who was the chief author of both of this term’s blockbuster decisions, relies on arguments as transparently political as those he wielded to decide Harris and Hobby Lobby, it makes Roberts’ work toward improving the court’s image that much harder. When Alito argues, as he does in Harris, that home-care workers paid by the state are not real public employees — not because of any intuitive distinction between your mother’s home-nurse and her bus driver, but because doing so is one of the easiest ways for him to rule against unions without taking the politically momentous step of nuking them entirely — it hurts the court. And when Alito echoes Bush v. Gore, as he does in Hobby Lobby, and states that the logic of the majority should not apply to medical services other than birth control — like vaccinations or blood transfusions — it hurts the court.
When John Roberts first assumed control of the Supreme Court, he spoke like a man who wanted to prove that the institution had earned its ostensible reputation as floating above politics and seeing beyond the tribal emotions of the culture war. But as the decisions on Monday showed, the reality is that the Roberts court is as political as ever. In Roberts’ court, it’s not abstract ideas of justice and law and republican government that win the day — it’s corporations, religious conservatives, employers and anyone who worries first and foremost about the interests of the powerful and the elite. Unless John Roberts’ goals were other than those he outlined in 2006, Monday’s decisions can only be interpreted as yet another saddening defeat.
By: Elias Isquith, Salon, June 30, 2014
“A Good Reminder To Voters”: The Political Repercussions Of The Hobby Lobby Decision
Normally it’s not a good idea to jump right into the political implications of a major Supreme Court decision like Hobby Lobby, but in this case there’s no point in waiting. This was a political decision and it is absolutely proper for Democrats to use it as a weapon in the midterm election campaign.
Minutes after the court ruled that closely held corporations have religious rights that permit them to deny contraceptive benefits to employees, Democrats made clear that they would use the case to remind women of the personal consequences of this kind of conservative ideology. An e-mail blast from the Democratic Party called the case a “wake-up call,” and urged recipients to “stand up for women’s rights” by electing Democrats to Congress.
Representative Debbie Wasserman Schultz, the party chairwoman, tied the case to other Republican policies regarding women, including blocking the Paycheck Fairness Act. “It is no surprise that Republicans have sided against women on this issue as they have consistently opposed a woman’s right to make her own health care decisions,” she said.
The Supreme Court, in other words, could become a high-profile stand-in for the offensive remarks of Tea Party candidates (remember “legitimate rape”?) that helped elect several Democrats in 2012, but have largely been quieted this year.
Of course Republican politicians are trying to portray the Hobby Lobby decision purely as a win for religious freedom, which is a more attractive spin than the loss of reproductive freedom for women who work for these companies.
“Today’s decision is a victory for religious freedom and another defeat for an administration that has repeatedly crossed constitutional lines in pursuit of its Big Government objectives,” Speaker John Boehner said in a statement. A more honest statement of the party’s thinking came in this tweet from Erick Erickson, the conservative blogger: “My religion trumps your ‘right’ to employer subsidized consequence free sex.”
The White House — aware that most Americans oppose letting employers choose contraception plans based on religious beliefs — wasted no time in trying to transform the public’s anger at this kind of thinking into political action. Josh Earnest, the new press secretary, urged Congress to take action to assist the women affected by the decision, implicitly reminding voters that the future of this issue is truly in their hands. And Senator Patty Murray of Washington, a leading Democrat, quickly took up the challenge.
“Since the Supreme Court decided it will not protect women’s access to health care, I will,” she said in a statement. “In the coming days I will work with my colleagues and the Administration to protect this access, regardless of who signs your paycheck.”
The court based its decision not on a Constitutional principle but on an act of Congress, the Religious Freedom Restoration Act of 1993. Acts of Congress can be overturned or changed if the right lawmakers are in place, and Hobby Lobby is a good reminder to voters that important policies are often not in the hands of nine justices, but in their own.
By: David Firestone, Taking Note, The Editors Blog, The New York Times, June 30, 2014
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