“In A Partisan League Of His Own”: Alito, Doing Everything He Can To Be ‘A Corporation’s Best Friend’
On Monday morning, around 10 a.m. ET, much of the nation’s political and legal world turned to Scotusblog to learn the outcome of two of the year’s biggest Supreme Court cases. Moments later, the blog told us that Justice Samuel Alito was delivering both rulings.
And it was at this point that everyone immediately knew that conservatives had won both cases.
What about the possibility of a surprise? How could everyone be absolutely certain that Alito would side with the right? Was it really so inconceivable that Alito would honor precedent and play against type?
Actually, yes, it was inconceivable.
Ian Millhiser made a compelling case today that Alito is “the most partisan” justice on the bench, making it pretty clear what to expect when he’s written a ruling.
According to data by Washington University Professor Lee Epstein, Alito is more likely to cast a conservative vote than anyone else on the Court.
To be fully precise, that does not make Alito the Court’s most conservative member. That honor belongs to Justice Clarence Thomas, who is the only member of the Court who openly pines for the days when federal child labor laws were considered unconstitutional. Yet, while Alito can’t match Thomas’s radicalism, he is far and away the most partisan member of the Court.
To explain this distinction, Thomas is not a partisan. He is an ideologue. His decisions are driven by a fairly coherent judicial philosophy which would often read the Constitution in much the same way that it was understood in 1918. While this methodology typically leads him to conservative results, it does occasionally align him with the Court’s liberals…. What makes Alito a partisan is that there is no similar case where his judicial philosophy drove him to a result that put him at odds with his fellow conservatives.
To put this in perspective, note that Millhiser highlighted a striking detail: Alito is the only sitting justice who has never crossed over – in effect, breaking ranks with the usual ideological allies – in a closely divided case.
Nine years ago, you’ll recall that Alito was not George W. Bush’s first choice. Rather, the Republican president initially nominated Harriet Miers, the White House counsel at the time, for the lifetime appointment on the high court.
It was among the more foolish decisions Bush made, which ended in an embarrassing withdrawal.
Miers was obviously unqualified, but Bush’s second choice, Sam Alito, is in many ways worse.
Millhiser’s indictment on Alito’s partisanship, his activism, his reliance on a raw political perspective, his desire to be “a corporation’s best friend,” makes a persuasive case and is worth checking out.
By: Steve Benen, The Maddow Blog, July 2, 2014
“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
“The Supreme Court Opens The Floodgates”: Hobby Lobby Ruling Is Infinitely Flexible, Based On Your Religion — Provided It’s The Right Religion
It didn’t take long for the conservatives on the Supreme Court to show that their decision in the Hobby Lobby case goes farther than Justice Alito professed when he wrote it — just as the liberal dissenters charged. Yesterday the Court granted an “emergency” injunction to Wheaton College, a Christian college in Illinois, so that the college wouldn’t have to endure the burden of filling out a form certifying their objections to contraception. The move sparked a blistering dissent from the Court’s three female justices, in which they wrote, “Those who are bound by our decisions usually believe they can take us at our word. Not so today.”
On its surface, this case appears to be a rather dull dispute about paperwork. But it actually gets to a much more fundamental question about what kinds of demands for special privileges people and organizations can make of the government on the basis of their religious beliefs.
One of the central points Alito made in the Hobby Lobby decision was that the company could be exempted from the law’s requirement that insurance plans cover contraception because there was a less restrictive means for the government to achieve its goal. This less restrictive means, he said, was the procedure the government had set up for religious non-profits: the group signs a form stating its objection and gives a copy to the government and to its third-party insurance administrator, which will then arrange for people to get contraception without the non-profit’s involvement or money. The fact that this procedure exists is what Justice Alito himself cited in the Hobby Lobby decision as proof that there was a less restrictive means for the government to accomplish its goal of guaranteeing preventive care, and for Hobby Lobby to keep clear of any involvement in contraception.
Yet in yesterday’s order, the conservative justices said this procedure — signing a form — is itself an unacceptable “burden” on Wheaton College’s religious freedom.
We don’t have to get into the administrative nightmare this could cause. (The dissent describes it well.) But the point is that there is seemingly no length this Court says the government shouldn’t go to accommodate this particular religious belief. A company or a university doesn’t want to follow the law? Well, we have to respect that — they can just sign a form stating their objection. Oh, they don’t want to sign the form? Well never mind, they don’t have to do that either.
When the Hobby Lobby decision came down on Monday, liberals warned that it was going to open the floodgates to all kinds of claims in which people would say that their “sincerely held” religious beliefs should excuse them from following the law. “My religion tells me I shouldn’t serve black people in my restaurant.” “My religion tells me not to pay sales taxes.” “My religion tells me that I should operate a brothel on my suburban cul de sac.”
But Alito wrote that that wouldn’t be a problem because in those kinds of cases the government was already employing the least restrictive means available to accomplish its legitimate goals, whether it’s stopping discrimination or collecting taxes or preventing prostitution. What the Wheaton College injunction shows, however, is that it matters very much who’s claiming that the law doesn’t apply to them. As much as the Court’s majority might want to believe their rulings are based in abstract principles that would apply to anyone, if you think they’d be working so hard to accommodate the claims for privilege of Muslims or Hindus or members of religious groups that the five conservatives on the Court do not have such an affinity for, you’re fooling yourself.
For some time now, conservatives have been claiming there’s a “war on religion” in America, but what they really want is special privileges, not for religion in general but for certain religions. They want government meetings to start with their prayers, they want their scriptures pinned on the walls of courthouses, they want everyone to celebrate their holidays and when they find the law displeasing — whether it’s a law about health care or discrimination or anything else — they want an exemption carved out just for them.
As important as the Hobby Lobby case is, it may be the seemingly small Wheaton College injunction that has the real effects. That’s because it’s a clear signal to everyone that the Hobby Lobby decision is infinitely flexible. As long as you liked the ruling, you don’t have to worry about whether the Court’s reasoning actually applies to your situation, because the Court doesn’t care. Go ahead and say the law doesn’t apply to you. As long as you say it’s because of your religion — provided it’s the right religion, and a belief like an abhorrence of contraception that the Court’s conservative majority shares — you’ll probably get away with it. And make no mistake: There are going to be a huge number of organizations, businesses, and individuals — probably thousands — that are going to try.
By: Paul Waldman, The Plum Line, The Washington Post, July 4, 2014
“Hobby Lobby Decision Is Not About Religious Freedom”: One More Battleground In The Never-Ending Culture War
Why are we still arguing over contraception?
Of all the mind-blowing medical advances of the last 50 years — in-utero surgery, genetic testing, face transplants — why is it that the sale and use of convenient, reliable birth control pills and devices still sparks such controversy?
The Supreme Court’s Hobby Lobby decision — in which the court’s conservative wing gave religious rights to corporations — is just one more battleground in the never-ending culture war. The high court ruled that the Affordable Care Act violates the religious rights of two family-held corporations whose owners objected to a requirement that they provide employees with health insurance policies that pay for a variety of contraceptives. Hobby Lobby, a crafts chain owned by Southern Baptists, and Conestoga Wood, owned by Mennonites, objected to four contraceptives that they mistakenly consider abortifacients.
If abortion were the animating issue, then liberals, conservatives and moderates would have joined forces long ago to promote more effective family planning. That would be the best way to limit abortions, which are usually the result of unintended pregnancies. Instead, the religious right continues to stand in the way of birth control.
The high court’s ruling, issued last week, hardly seems calamitous since it was limited to those four family planning methods. But the decision, by five male justices, still points to a curious sexism that pervades much of the political discussion around contraception. It’s no wonder that conservatives are accused of waging a “war on women.”
As Justice Ruth Bader Ginsburg noted in her dissent, “The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.” In other words, the remarkable cultural transformation that has allowed women to assume leadership roles in corporations, in the military and in politics was assisted by the revolution in reliable contraception, starting with the introduction of “the pill” in 1960.
History reminds us, though, that family planning has long been political. In 1879, the state of Connecticut passed a law prohibiting the use of “any drug, medicinal article or instrument for the purpose of preventing conception.” Remarkably, the Supreme Court didn’t strike down that intrusive law until 1965, nearly a hundred years later.
In the decades since, women — and men — have largely taken for granted the right to convenient and reliable birth control. That’s true even among Roman Catholics, although papal doctrine still forbids it. According to the Pew Research Center, only 15 percent of Catholics view contraceptive use as “morally wrong.”
Yet, the backlash among ultraconservatives has become more evident in recent years, especially since the mandate on contraception coverage in Obamacare. In 2012, a young Georgetown law student named Sandra Fluke incited the ire of conservatives when she insisted that her university should offer contraceptives in its health insurance policies, despite its church affiliation. Among the more memorable comments that have been directed her way, Rush Limbaugh labeled her a “slut” and a “prostitute.”
Several months ago, former Arkansas governor Mike Huckabee, a Fox News commentator still popular on the ultraconservative lecture circuit, was explicitly sexist as he blasted Democrats’ support for contraceptive coverage in the ACA, claiming they want women to think “they are helpless without Uncle Sugar coming in and providing for them a prescription each month for birth control because they cannot control their libido …”
Indeed, Republican politicians and their allies have showered invective on women who believe that health insurance plans should pay for a full range of reproductive services, including birth control devices and medications. Their rhetoric is full of offensive references to women’s sexuality, which tells you all you need to know about where they’re coming from.
Of course, Justice Samuel Alito, writing for the majority, was much more circumspect in his language. Still, the majority’s outdated ideology shines through — partly because they made clear that their reasoning applies only to contraceptives and not to other medical care. There is no religious exemption for, say, a company owned by Jehovah’s Witnesses that doesn’t want its health insurance policies to pay for blood transfusions.
This ruling had little to do with religious liberty and much to do with women’s reproductive freedom.
By: Cynthia Tucker, Visiting Professor at The University of Georgia; The National Memo, July 5, 2014
“Calling The Shots”: Who If Not Tea Folk Control GOP Agenda?
We’re now in the less fertile summer plain of primary elections, with no contests this month other than the unfinished business of runoffs in Alabama and North Carolina on July 15 and Georgia on July 22. So it’s a good time to look back on what Republicans in particular hath wrought, and at TPMCafe Harvard’s expert on (among other things) the Tea Party, Theda Skocpol, suggests we should be looking at Congress rather than the primary outcomes for a sense of where things stand inside the GOP.
An obsession with toting up wins and losses in primaries completely misreads how Tea Party forces work, how they have moved the governing agendas of the Republican Party ever further right and maintained a stranglehold on federal government action….
Tea Party clout in and upon Republican officials, officeholders, and candidates is actually maximized by the dynamic interplay of top-down and bottom-up forces, both pushing for absolute opposition to President Barack Obama and obstruction of Congressional action involving compromises with Democrats. Tea Party forces are neither inside nor outside, neither for nor against the Republican Party in any simple sense, because they are sets of organizations and activists seeking leverage over the choices and actions of Republican leaders and candidates.
This dynamic long preceded the inauguration of Obama and the formal launching of the Tea Party Movement, but has surely intensified since 2009.
To see that the Tea Party remains supremely effective, just look at what Congressional Republicans are doing, or not doing. Eric Cantor’s sudden defeat sealed the GOP House’s determination to block immigration reform, but that reform was already effectively dead even before that one primary election happened. Republicans have pulled away from decades-old compromises to fund transportation systems, to support agricultural subsidies along with Food Stamps, to renew the Export-Import Bank that most U.S. business interests want continued. House and Senate Republicans are spending their time mainly on obstruction and media-focused investigations, anything to challenge and humiliate President Obama. In state houses, Tea Party-pushed Republicans are mainly passing anti-abortion restrictions and blocking the expansion of Medicaid favored by hospitals and businesses.
What do primary elections have to do with such effective agenda control? Not nearly as much as the basketball finals approach to tallying total wins and losses implies. In a way, unpredictable and somewhat random victories against fairly safe Republican power-brokers are the most effective outcomes for Tea Party voters and funders. Sure, the big Tea Party funders would like to have gotten a win for Chris McDaniel, their guy in Mississippi, and they are furious that they did not. But backing up and looking at the big picture, does anyone really imagine that nervous GOP officeholders are reassured that the Tea Party is dead or “under control” following a scenario in which old timer Thad Cochran had to raise millions for what should have been a taken-for-granted primary victory, and his allies had to orchestrate an all-out voter mobilization effort that even reached out to some African American Democrats? Cochran’s near-death sends a powerful message that loudly hewing hard-right on policy issues and obstruction is the way to go. Similarly, Eric Cantor’s huge defeat is even more frightening to many Republican politicians because it happened without big-money backing from the likes of Heritage Action.
Another way to put it is to ask whether there’s any issue on which the GOP has decisively pushed back on the Tea Party agenda? Yes, there was the decision to abandon the government shutdown last year, but even the Tea Folk understood that couldn’t go on forever. Other than that, it’s hard to see where and how the alleged “Establishment” primary victories are going to make any actual difference. Look at the Common Core educational standards issue, supposedly a huge priority for the business community that has given so generously to the Establishment cause. Chamber of Commerce beneficiaries Thom Tillis of North Carolina, Joni Ernst of Iowa and Jack Kingston of Georgia have all come out against Common Core. Who’s really calling the shots in the GOP, if not the radicalized conservative movement we call the Tea Party?
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, July 4, 2014
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