“A Most Revealing Week For Republicans”: What Matters Most To The GOP, Protect The Rich, Injure The Poor
If you haven’t done so yet, I urge you to take three minutes here with me to reflect on this unusually revealing week. Three big developments—the Obamacare enrollment deadline, the Paul Ryan budget, and the Supreme Court’s McCutcheon decision—return us to first principles, so to speak; remind us of what our two parties (and the philosophical positions behind them) are really and truly about. And they remind me, at least, of why the Republican Party, on a very basic level, can’t ever be truthful with the American people about what matters to it most at the end of the day.
So what is it that matters most to the Republican Party? A lot of things do, and for different Republicans, the answer will be different: abhorrence of abortion, disgust at social relativism, hatred of big government. These things matter. But they don’t, in my view, matter most. What matters most, especially to elected Republicans in Washington (that is, more so than the rank-and-file), is this: Protect the well-off from redistribution of their wealth to those who don’t deserve it.
On what basis do I make this claim? Well, I’ve been watching Republicans on Capitol Hill pretty closely for many years now. There are, Lord knows, a number of topics on which they are not exactly what you’d call amenable to compromise. The climate-change denialism, the constant attempts to chop away at reproductive rights (which are constitutional rights), et cetera.
But I think it’s fair and accurate to say that, especially in the Obama era, two issues have obsessed the party more than all the others: opposition to tax increases, especially on the wealthy; and a zeal for cutting the budget, which really means cutting domestic spending programs.
In other words—protect the rich, and injure the poor. These are the points on which they’ve fought tooth and nail. After all, think about this: They could have had a major concession from Obama on entitlements (chained CPI) if they’d been willing to allow an income-tax increase on dollars earned above $250,000. But even that couldn’t reel them in. It’s true they did allow an increase on dollars earned above $450,000 (for families) in the fiscal-cliff deal, but their backs were really against the wall on that one: They relented to that small increase only because the country was hours away from a major tax increase (the expiration of the Bush tax cuts), and it was clear to everyone that the Republicans were going to shoulder most of the blame.
As for cutting the federal budget, downsizing government—and we all know doing that hurts poor and working-class families most directly—well, wasn’t that the chief impetus behind the creation of the Tea Party? Remember Rick Santelli’s creation-myth rant, about the anger at the people who took mortgages they couldn’t afford. (Classic liberal-conservative divide, rooted almost entirely in psychological outlook: Liberals tended to blame the banks that hornswoggled people, while conservatives tended to blame the people who let themselves be hornswoggled.)
That’s the game. Redistribution, as in loathing of. That’s the glue of the Washington Republican Party. And it’s wrong to think of it as just an “economic” issue. It is, to them, a moral one. Don’t believe me? Take it from Arthur Brooks, head of the American Enterprise Institute, who wrote a famous Wall Street Journal column back in April 2009 headlined “The Real Culture War Is Over Capitalism.” Reread that. Money, a cultural issue. Defenders of free enterprise, he wrote, “have to declare that it is a moral issue to confiscate more income from the minority simply because the government can.” He also charged these same defenders with the task of defining true “fairness” as “protecting merit and freedom.” I shouldn’t have to decode those two words for you, I shouldn’t think.
But here’s the thing: Brooks’s candor was and is rare. It wasn’t a risk of any kind for him to express those views to the readers of the Journal’s Op-Ed page, who would strongly agree. But most Americans don’t agree. Most Americans support redistribution to one degree or another. They support progressive taxation, they support many or even most categories of government spending, and so on. We—liberal Democrats, centrist Democrats, and moderate Republicans, to the extent that they exist—argue about how much spending, but not about the very notion of spending. Real conservatives stand outside this conversation: They believe that virtually no redistributive spending is justified. But they know that’s a highly unpopular position, so most of the time, they can’t say that. They have to say other things.
Now let’s circle back to this week. What Republicans really think about Obamacare, as E.J. Dionne put it in The Washington Post yesterday, is that “they don’t want the federal government to spend the significant sums of money needed to get everyone covered.” But they know that sounds cruel, so they can’t say that. So instead of inveighing against redistribution directly, they’ve spent months talking about its unworkability. Well, that’s been proven wrong (so far), and so now they’ll just say, as they have been this week, that they don’t believe the numbers. Then they’ll fish out more alleged horror stories that don’t check out. But they won’t say what they actually think.
In the same way, Paul Ryan puts out a budget document that makes dramatic cuts on programs for poor and working people, which makes four domestic promises in the summary—“Expand Opportunity,” “Strengthen the Safety Net,” “Secure Seniors’ Retirement,” and “Restore Fairness”—but in its numbers does the opposite. Ryan’s budgets have always been first and foremost about attacking redistribution aggressively. But he can’t say that. So he just says the opposite.
And what does the McCutcheon decision have to do with all this? Very simple. Redistribution happens because redistributionist politicians have the nasty habit of getting elected. They get elected, in part, because of campaign-finance laws that limit wealthy conservatives’ ability to influence outcomes. In this sense the campaign-finance reform laws of the 1970s are themselves redistributionist—they were explicitly designed to level the playing field, which is a hoary cliché but expresses a proper goal, i.e., not letting the wealthy own Congress lock, stock, and barrel.
McCutcheon tells us, to an extent that even Citizens United hadn’t quite, that Chief Justice John Roberts detests this electoral redistributionism, and as Jeffrey Toobin wrote this week, has as his goal “the deregulation of American political campaigns.” Roberts’s opinion says: “It is not an acceptable governmental objective to ‘level the playing field.’” You can’t ask for it to be put more plainly than that. (Roberts doesn’t face voters and has a job for life and can speak with more candor than senators.)
Savagely fighting the delivery of health care to financially struggling people; slashing the federal programs that help these people get by; rigging elections so that rich conservatives (who outnumber rich liberals substantially) have more control over who wins them. These may seem disparate battles, especially the third one, but the motivation in each case is the same: Protect the well-off from redistribution of their wealth to those who don’t deserve it.
You’ll rarely hear an elected Republican admit this. But it’s usually the motivation. And we saw it this week in starker relief than we usually do. But don’t despair too much: They may yet prevail on campaign spending, but Ryan is going to lose, and Obamacare is going to win. So maybe, even though they won’t talk about it openly, people are onto them anyway.
By: Michael Tomasky, The Daily Beast, April 4, 2014
“Showing Its True Colors”: The GOP’s Case For Scrapping Democracy
When I wrote a recent column describing the GOP’s new voting laws as a “war on democracy,” I expected a sharp response from the Right. What I thought I’d hear were variations on the following: “No, Republicans aren’t at war with democracy. We’re just trying to fight voter fraud and make sure elections are held fairly and uniformly within states. And that’s a goal that enhances democracy.”
Not only is this how the issue is usually discussed by Republican politicians; it’s also the way nearly every political dispute in the United States over the past century has been framed — as a clash between different camps over which one can claim the mantle of “democracy” for itself. People will routinely assert that some other group, party, or position is anti-democratic in its aims and ideals. But no group, party, or position comes right out and explicitly denounces democracy in its own name.
At least until recently.
Allow me to quote a representative email written in response to my column: “I just read your piece on the GOP changes to voting laws. It’s complete garbage! Americans who have no skin in the game should not be voting! The way things have evolved in the last 200 years is nothing short of disgusting! People who don’t offer anything tangible to the country are given as much say as people who pay 400k in taxes per year? Ridiculous! How did we regress so far?”
An anti-democratic outlier? Five years ago, I would have thought so. But now I’m not so sure.
This was the week, of course, when the Supreme Court’s five-member conservative majority knocked down limits on aggregate contributions to federal political campaigns, opening the door for the rich to exercise even more influence on the political system than they already do. It was also the week when Rep. Paul Ryan unveiled his latest budget proposal, which would gut food stamps and other aid to the poor. And as I wrote about the other day, this is a political season that has seen the Republican Party working to make it harder for poor people and members of minority groups to vote.
Then there was venture capitalist Tom Perkins suggesting a couple of months ago that only taxpayers should be permitted to vote — and that those who pay more in taxes should be given more votes to cast in elections. And that came less than two years after Mitt Romney was caught kissing up to wealthy GOP donors by denigrating the “moochers” who make up 47 percent of the country’s population.
Ladies and gentlemen, that many data points make a pattern. We seem to be living in an era in which the Republican Party is turning against democracy in an increasingly explicit and undeniable way.
Within the context of the nation’s recent political history, this is a shocking prospect. We’re used to a constant evolution in the direction of ever-more democracy. At the time of the country’s founding, the franchise was limited to white male property owners. Then the property qualification was eliminated. Then the vote was extended (de jure) to black men. Then to women. Then to all blacks (de facto), with most of the remaining obstacles to the exercise of voting rights by minorities and the poor removed by the mid-1960s.
What growing numbers of Republicans appear to want is a reversal of this trend — a reform of the political system to exclude large numbers of Americans from having a say in politics while augmenting and enhancing the electoral power of the rich.
This might be unprecedented in American history, but it’s certainly not unthinkable. Despite our fondness for describing ourselves as a democracy, the American system is already far from being wholly democratic. A pure democracy would pick leaders by lot, indiscriminately assigning citizens to political office for fixed terms according to chance. This year your Aunt Bess might be president. Next year it could be a 19-year-old mechanic from Omaha. And so on, haphazardly hopscotching through the population at random.
The institution of elections introduces an element of hierarchy into the system, since it presumes that some people are more capable than others of exercising political rule and that voters can recognize this quality when they see it.
What the GOP appears to be inching toward is a rejection of the democratic presumption that all American citizens should have a say in making that determination. Interestingly, the anti-democratic argument doesn’t seem to be arising directly or primarily from a concern about the quality of the people’s political choices — a perennial and nontrivial objection to democratic forms of government going all the way back to Plato.
Instead, Republicans and their wealthy donor base appear, above all else, to be up in arms about the lack of deference shown to the rich, with the implication being that those at the top of the economic pyramid deserve greater public honors (and power) than they currently enjoy. (That certainly seems to be the subtext of this rather self-pitying Wall Street Journal op-ed by billionaire industrialist Charles Koch.)
Aristotle would have recognized this line of argument instantly. It is the classic case for political rule of the few. Aristotle would also have been unsurprised to learn that those making this claim use their wealth as evidence of personal virtue or excellence that entitles them to honor and deference.
What the ancient philosopher could not have anticipated is the role that free-market ideology would play in convincing nonwealthy members of the Republican Party that the self-enriching activity of entrepreneurs (“job creators”) self-evidently demonstrates their public-spiritedness and worthiness to wield political power without challenge.
Politicians of both parties are fond of saying that whatever election looms before us is the most important in recent memory. But if Republicans continue to stand against democracy itself, the hype, for once, will be true — and for a long time to come.
By: Damon Linker, The Week, April 4, 2014
“The General Public Will Not Be Heard”: John Roberts Shows He Has No Idea How Money Works In Politics
Shaun McCutcheon is the kind of donor that the Republican Party can’t get enough of. The CEO of Coalmont Electrical Development in McCalla, Alabama, McCutcheon made a small fortune from his work in the mining industry and dedicated much of his life to electing Republicans. The Chairman of the Alabama State Republican Party said that McCutcheon was great at “supporting conservative candidates, getting conservatives elected to office.” Upset that he couldn’t donate more than the federal limit of $46,200 to individual candidates, he teamed up with Senator Mitch McConnell at a CPAC conference in 2012 to launch the latest assault on campaign finance law.
In today’s Supreme Court decision, the Roberts Court, in another 5-4 decision, tore down the aggregate donation restriction. Going forward, donors like McCutcheon can donate up to $3.6 million per cycle, as long as the donations are done in $2,600 blocks to individual candidates.
In reality, the case may not have a huge impact on elections. By tearing down any restriction on the amount that an individual can donate to a Super PAC, Citizens United already opened the spigot on unlimited money in our electoral system. Today’s decision builds on Citizens United but the harm to democracy has already been done.
What is striking about the opinion is how completely off-base Chief Justice Roberts is in his understanding of the role of money in politics. Roberts struck down the law, framing the attempt to limit the flow of money into politics as an attempt to stifle unpopular speech. Just as the First Amendment protects, “flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.” For the Roberts Court, wealthy donors are under attack as a minority and need the protection of the Supreme Court. Under the Citizens United framework that money is speech, the court in McCutcheon struck the aggregate limit as a violation of the First Amendment.
The Court comes off as remarkably uninformed when it comes to the relationship between wealthy donors and elected officials. Roberts says that legislation cannot seek to limit what he calls the “general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford.” Roberts said “spending large sums of money” would not “give rise to such quid pro quo corruption.” The reality is, of course, that looking for evidence of direct trades of a Congressional vote for a donation will reveal very few instances of corruption. However, as Lawrence Lessig has established, there is a broader system of “dependence corruption” in which candidates must rely on wealthy donors in order to have access to the political system. The Roberts Court reflects a lack of understanding in how money actually operates in our political system and has adopted such a hollow understanding of corruption that they are able to view our system as free of any corrupting influence.
The reality, as Justice Breyer stated from the bench, is that the decisions in Citizens United and McCutcheon “eviscerates our nation’s campaign finance law.” We are left with an inability to regulate the flow of millions into the campaign finance system and a Court that is unwilling to stand up to anything but the most blatant forms of corruption.
Conservatives will celebrate today’s decision as a victory for the First Amendment but the reality is that the right to political speech is under assault from the torrent of money pouring into our elections. This is a point that Justice Breyer captured in his dissent; “Where enough money calls the tune, the general public will not be heard.”
The Supreme Court is now controlling how the Congress can limit the electoral process but, remarkably, not a single Justice has ever held elected office. Since Justice Sandra Day O’Connor, a former State Senator in Arizona, resigned from the Supreme Court in 2005, we have not had a Justice with any experience in elected office. Since she left the Court, Justice O’Connor has openly critiqued the decision in Citizens United, and has argued “we’re in a bit of trouble in this whole area.” While putting elected officials on the Supreme Court has fallen out of fashion, due in part to the extensive voting records they are forced to defend, the Court’s decision in McCutcheon is a reminder that it may be quite valuable to have a Justice who can tell his or her colleagues how a campaign actually works and the impact of money in our electoral system.
If there is any silver lining in this decision, it is that it can help to draw public attention to the outsized role that large-scale donors are playing in our electoral process. The backlash to Citizens United demonstrated that the public does care about this issue and after today’s decision there will be a demand for further action. The decision may not change the landscape of the 2014 elections because donors can already dump huge sums of money into elections but it does show how little the Roberts Court understands about how our campaign finance system actually works. Thanks to the Roberts Court, we no longer have a working campaign finance system; all we have left, as Justice Breyer noted today, is “a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.” We are living in a brave new world of elections, a world where millionaires and billionaires speak loudly and the rest of us do the listening.
By: Sam Kleiner, Fellow at Yale Law School’s Information Society Project; Published in The New Republic, April 2, 2014
“It Might Help To Read It First”: The Hobby Lobby President Is Also Building A $70 Million Bible Museum
On Tuesday, the Supreme Court will consider the challenge of Hobby Lobby, an Oklahoma City-based craft-store chain, to Obamacare’s contraception mandate—a case that could bolster the doctrine of corporate personhood that the Court laid out in Citizens United and end anti-discrimination laws as we know them. Just a few blocks away, the Hobby Lobby’s president, Steve Green, is looking to enshrine his religious beliefs in Washington, D.C. in a different way: with a $50 million museum devoted to the bible.
The new attraction will house a collection of historic bibles that Green has been assembling since 2010. His holdings range from a hand-illustrated Martin Luther New Testament to a Torah from the Spanish Inquisition; experts have valued them at between $20 and $40 million. The Museum of the Bible, which is slated to open in the spring of 2017, will sit at 3rd and D Streets in Southwest D.C., in an eight-story warehouse that Green plans to complement with a two-story addition. A report from the city’s Historic Preservation Review Board even compared the mock-ups to London’s Tate Modern. The museum’s goal, according to the mission statement in its 501(c)3 tax filings for 2011, the most recent year available, is “To bring to life the living word of God, to tell its compelling story of preservation, and to inspire confidence in the absolute authority and reliability of the bible.”
The museum plans to accomplish this largely through historic reenactments, or what its chief operating officer Cary Summers calls “immersive environments.” For example, the Green Collection’s travelling exhibition—so far, it’s been shown in Oklahoma City, Atlanta, Israel, Cuba, and the Vatican—displays a note written by Martin Luther the night before his excommunication in “a theater featuring a debate between Fathers Erasmus and Luther and Dr. Johann Eck … which culminates in Luther nailing his 95 Theses to his church door.” Tourists will also find set pieces of the Dead Sea, where the famous scrolls were found, and London’s Westminster Abbey, where the King James Bible was written.
Summers assured me that “we’re not trying to convince anybody of anything. We’re simply presenting the facts.” Summers added that consistency across thousands of international bibles “gives a great deal of comfort that the bible is true, and it’s accurate.”
When I asked Summers if the exhibits would contain any evidence that the bible was divinely written, he asked, “What if I was to ask you, did Shakespeare write Shakespeare?” I said the jury was out on the bard. “That’s true,” he said. “So somewhere along the way, people have to draw a line and say, ‘Everything I read, even though I can’t prove Aristotle was Aristotle or Sappho was Sappho’—people have a tendency to believe that they are.”
Along with snapshots from biblical historiography, the Museum of the Bible will recreate scenes from famous biblical stories, such as creation. But Summers said it won’t touch on their more controversial implications. Summers has also served as a consultant at the Creation Museum, where an exhibit shows Adam and Eve sharing the Garden with the dinosaurs. Green’s museum, by contrast, will reiterate the tale of earth’s first seven days without mentioning evolution. “How people interpret it is up to them—we’re not going there,” said Summers. “If others want to create a museum that takes the other approach, that’s up to them.” Of course, others have, at the National Museum of Natural History a few blocks away.
Summers said the museum won’t mention homosexuality, abortion, or any other “political commentary.” (He also declined to comment on the Supreme Court case.) But he hinted that the museum will weigh in more freely on controversies past. He mentioned anthropological exhibitions on the spread of the bible: How it “enters into countries and very uncivilized tribes and cultural settings that are very cruel. The bible entered into it and their lives were changed. … We’re presenting the impact through the facts.”
These anthropological components, along with exhibits on archeological records that corroborate biblical stories, are in early planning stages. In the meantime, the Green Collection continues touring—it’s en route to the Vatican this week—while the architects work on its eventual home. Religion News Service has reported that Green paid $50 million for the former refrigeration warehouse, which is currently occupied by the Washington Design Center. Tax filings value its artifacts at $23,038,000.
As Green’s landmark lawsuit comes before the Court, his collection continues to make the rounds, embedded in history as he sees it. Workers who depend on a paycheck and health care from his company, or another with a religious owner, may soon be highly acquainted with his point of view. Visiting his museum, on the other hand, is voluntary.
By: Nora Caplan-Bricker, The New Republic, March 25, 2014
“Can Liberals Trust John Roberts To Rescue Obamacare Again?”: A Pro-Hobby Lobby Ruling Would Be His Most Radical Decision
Most Supreme Court watchers are fixated these days on Sebelius v. Hobby Lobby—the important challenge to the Affordable Care Act’s contraception mandate scheduled for argument Tuesday. And why wouldn’t they be? With its potent mix of religion, sex, Obamacare, and prayerful corporations, it’s the blockbuster case of the term. It is also a crucial test of Chief Justice John Roberts’s leadership on the Supreme Court.
Just two years ago, Roberts cast the deciding vote to largely uphold the Affordable Care Act. While the country remains divided over whether he acted like a traitor or a statesman, all would have to agree that, given the level of public scrutiny on the Court and the case’s overall importance (both substantively and to the President’s legacy), Roberts’s ACA vote was the defining moment of his tenure thus far. In a bold move, he broke ranks with his conservative colleagues, joined with the Court’s progressive wing, and preserved the President’s signature achievement. In Hobby Lobby, Roberts meets the ACA yet again, and the stakes for his reputation—and that of his Court—couldn’t be higher.
Chief Justice Roberts has often spoken about how important it is for the justices to maintain the legitimacy of the Court—by limiting divisive rulings, moving the law incrementally, and trying to stay above politics. For instance, in an interview with Jeffrey Rosen early in his tenure as chief justice, Roberts explained that the Court is “ripe for a … refocus on functioning as an institution, because if it doesn’t it’s going to lose its credibility and legitimacy.” Expressing admiration for the great Chief Justice John Marshall, Roberts added that, even as a committed Federalist, Marshall preferred to move the law “in a way that … wasn’t going to alienate people on the Court and turn the Court into another battleground.” While commentators certainly quibble over just how radical an effect John Roberts has had on the law—even Justice Antonin Scalia once attacked the chief justice’s approach in a pre-Citizens United campaign finance case as “faux judicial restraint”—there’s little question that Roberts himself prefers the image of the modest jurist to that of judge-as-hero (think Earl Warren) or judge-as-prophet (think Scalia).
He cultivated this image most dramatically in the first ACA case, joining with his progressive colleagues to uphold a Democratic president’s most important achievement—and in the middle of an election year, no less. Furthermore, just last term, the Roberts Court managed to reach an unlikely compromise in a blockbuster affirmative action case, and Roberts himself preserved the marriage-equality status quo in California with his majority opinion in Hollingsworth v. Perry. However, even in areas where Roberts has pushed the law dramatically to the right (like voting rights), he has tended to prefer a slower-moving, more incremental approach than his more radical colleagues, with seismic shifts (like Shelby County v. Holder) coming only after the political ground has already been prepared with previous, more modest decisions (like NAMUDNO v. Holder)—legal warning shots, if you will. He has also chipped away at progressive laws in a series of low-profile cases—for instance, those on the Court’s business docket. This strategy allows him to move the law to the right, while also preserving the institutional legitimacy of the Court.
Through this lens, Hobby Lobby presents a potential dilemma for the savvy Chief Justice. In the case, Hobby Lobby, a craft-store chain owned by Southern Baptists, is suing the government to seek religious exemption from the ACA’s requirement that it offer insurance plans to employees that cover contraception at no extra cost. On the one hand, Roberts is confronting the ACA for the first time since the conservative firestorm over his decision largely upholding the Act. There’s little doubt that he’ll be tempted to throw conservatives a bone, siding with Hobby Lobby and against the ACA.
On the other hand, a vote in favor of Hobby Lobby requires the chief justice to do at least three things that threaten major disruptive consequences and present serious downstream risks for the Court as an institution. First, he must conclude that corporations have the same rights to religious freedom as living, breathing humans—something that the Supreme Court has never done. Second, he must unsettle centuries of well-established corporate law practice—a move at loggerheads with the Roberts Court’s (and John Roberts’s own) pro-corporate leanings. And, third, he must extend unprecedented protections to a secular employer, therefore opening the floodgates to new religious freedom challenges to countless other laws. In short, a vote for Hobby Lobby means endorsing a radical departure from well-settled precedent—perhaps nowhere more strikingly than in the realm of religious freedom.
In the decades leading up to the Supreme Court’s 1990 landmark decision in Employment Division v. Smith, courts heard many free exercise challenges. For the most part, they followed a familiar pattern: A law applied to everyone in a given jurisdiction; someone came to court and claimed a religious objection to that law; and the court ultimately rejected that challenger’s claim. This was true in the Supreme Court and, as explained by Professor James Ryan, it was also true in the lower courts. The bottom line—whether you were an Amish employer refusing to pay Social Security taxes or an army doctor wishing to wear a yarmulke while on duty, you were probably going to lose your free exercise claim.
Then along came Smith—a free exercise decision that hit the legal and political world like a thunderbolt. The case involved Native Americans dismissed from their jobs for failing a drug test. (They had smoked peyote during a religious ceremony.) Because of this drug use—religiously motivated or not—Oregon then denied them unemployment benefits. When they challenged this action on free exercise grounds, the Court rejected their claim. However, rather than simply applying the Court’s traditional balancing test (where the Court weighed a given law’s burden on religion against the governmental interest advanced by the law), Justice Scalia struck a radical pose, shelving it for a bright-line rule that was even less protective of religious objectors—and hence the controversy.
Of course, under the pre-Smith test, religious objectors were already losing these cases. Following Smith, they were only slightly more likely to do so. Nevertheless, Congress responded to Scalia’s decision by enacting a new law explicitly overturning Smith and restoring the pre-Smith status quo, but all that really did was reestablish an environment where free exercise claims rarely succeeded.
Given this legal backdrop, the key question for Roberts leading up to the Hobby Lobby argument is whether he’ll stick with this traditional approach or adopt a new, more stringent test—one even stricter than anything that existed in the pre-Smith world. If the chief justice takes the more radical path—and, more importantly, if he convinces at least four of his colleagues to go along with him—Hobby Lobby could, indeed, live up to the hype and become a truly revolutionary case.
For instance, such a ruling would entangle lower courts and the Roberts Court itself in knotty free exercise challenges (and a lot of them)—challenges that would potentially require judges to define what counts as “religious belief,” assess the sincerity of those beliefs that pass muster, and apply the traditional balancing test with serious bite. Courts have balked at going down this path in the past—and for good reason. Furthermore, the Supreme Court has never granted a religious accommodation to a secular business that comes at the expense of its employees—an unprecedented move that would allow secular employers to effectively impose their own religious views on the employees, even in the face of contrary laws.
In the end, however tempted Chief Justice Roberts may be to strike a blow to Obamacare in this highly publicized, blockbuster case—and however much his conservative colleagues may be pulling him in that direction—Roberts can’t give in to these pressures without tarnishing his carefully cultivated image as a cautious jurist and, in the process, unleashing a wave of unpredictable (and risky) consequences.
By: Tom Donnelly, Counsel at Constitutional Accountability Center; The New Republic, March 24, 2014
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