mykeystrokes.com

"Do or Do not. There is no try."

“A Revolutionary Committee”: Time For Some Candor From The Supreme Court

In most of the cases it decides, the Supreme Court is what it presents itself as: a court of law. The justices apply preexisting rules and standards set forth, for example, in the Constitution and statutes passed by Congress, to a dizzying array of human and institutional behaviors.

But in many highly contested cases, especially those involving the definition of broad-based rights, the Supreme Court is only slightly more a court of law than the House of Representatives or the Senate. Here the justices are often covertly and ashamedly quasi-legislative, actually deciding what sort of a society they wish to call into being, designating winners and losers on the basis what they want or hope will be best.

A powerful mythology keeps the Supreme Court and its constituencies from acknowledging this. Sore losers often claim they have been cheated by life-tenured federal judges, but such complaints are promptly forgotten because today’s angry critic is tomorrow’s triumphant victor, suddenly extolling the fairness of the justices.

Judges, lawyers and the interested public usually end up colluding in promoting the idea that when the Supreme Court decides that corporations have the same speech rights as natural persons, or that there need not be a recount in a contested presidential election, or that sodomy cannot be a crime, or that racial segregation in education is not only abhorrent but a violation of the Constitution, the rule of law, not the rule of men, is in operation.

The core notion we cling to is basic civics. Though chosen democratically, the justices are not elected. The information they receive and their legitimacy are rightly circumscribed, the former by laws that surround the way decisions are reached, and the latter by their unaccountability. It is feared that if the Supreme Court talked about what serious observers concede, that many major rulings are a result of value choices made in a legal context rather than on strict application of a legal rule or precedent, the ensuing contradictions would undermine the public’s acceptance of its decisions.

Justice Sonia Sotomayer came as close as justices of the Supreme Court ever do to crossing this line when she pointed out the glaring inconsistency between the court’s assurances in the Hobby Lobby contraception case and a decision granting Wheaton College an injunction four days later. Despite becoming instantly famous, her blunt language — “Those who are bound by our decisions usually believe they can take us at our word. Not so today.” — stops far short of what an elected politician might say in a similar situation.

Deeply embedded in the discourse that follows decisions in epochal cases is talk about the way the Supreme Court’s reasoning connects to its conclusions and the practical consequences of the ruling. All can condemn or praise the work of the Supreme Court, but only entrenched partisans are likely to claim that the decision is purely political.

What Supreme Court majorities never admit is that the past is so contingent, and the choices made by other governmental actors so unclear, that nothing is left for the Supreme Court to do but what it thinks best under the circumstances. The thought is that it would be institutionally damaging to admit that the justices just choose the reasonable and wise course, in effect conceding that they truly act as a “revolutionary committee,” as A.A. Berle once memorably put it. Given such an admission, would the next voice say, “Why not leave these choices to the elected?”

But maintaining the myth is costly. Because both unhappy losers and Supreme Court analysts know that all too often the threads of the law said to dispose of a case really stand only as a thin cover of justification (rather as an honest search for solution), the result is large-scale cynicism. Law students learn early in their first year the difference between the language of opinions and what really cuts the mustard. Practicing lawyers know well the difference between rhetoric and reality.

This gap between actual and masked reasons for a decision muddies the waters and inhibits healthy debate. And it is unnecessary. Perhaps there was a time when, in order to respect the law, the public had to believe that it was found somewhere outside our judges, a “brooding omnipresence,” as it was called, but no longer. Given the massive exposure in the media to what passes for law making, people today are not quite so naïve.

More importantly, we need the justices to do more of what they do well. A deliberative process responsive to objective evidence and narrowed to real controversies is a paramount governmental function. There is probably no better way to meet the need to manage the existential controversies of a complex society than a judicial process that presents the true bases of decisions. What is no longer sustainable is the illusion that in these major cases the justices are merely the mouthpiece for decisions made by Congress or settled long ago by James Madison and his colleagues.

 

By: Michael Meltsner, Matthews Distinguished Professor of Law at Northeastern University School of Law; The Hoffington Post Blog, July 25, 2014

July 28, 2014 Posted by | Constitution, Democracy, Supreme Court | , , , , , | Leave a comment

“The High Court’s Highhandedness”: Rulings Are Based Less In Law Than In The Personal Beliefs Of The Men On The Tribunal

It is a case of Supreme hypocrisy.

The adjective refers to that nine-person tribunal at the top of the American legal system, the noun to its latest act of judicial malpractice. Meaning not the notorious Hobby Lobby decision handed down at the end of June, but a less-noticed ruling a few days later.

We have to revisit the former to provide context for the latter. On June 30, the court ruled that a “closely held” corporation may deny employees health insurance covering any contraceptive method that conflicts with the company’s religious beliefs. Writing for the majority, Justice Samuel Alito faulted the government for failing, under the Affordable Care Act, to choose the “least restrictive” means of ensuring women access to all FDA-approved methods of birth control. He pointed out that the ACA already makes an exemption for nonprofit groups with religious objections; simply fill out a form certifying those objections and they are relieved from having to provide the disputed contraceptives.

Alito saw this as a win-win. Employees get the birth control they want — they pay directly to the insurance company — but the government does not “impinge” on the organization’s religious beliefs.

Three days later, the court issued an injunction freeing a Christian school — Wheaton College in Illinois — from having to fill out the certification form. The school had argued that simply doing the paperwork — the form asks only for name, contact information, signature and date — infringed upon its religious liberty because it would trigger the employee’s ability to get the disputed contraception. So the same form that the court held to be a reasonable compromise on Monday was judged an unreasonable burden on Thursday. Or as Justice Sonia Sotomayor put it in a withering dissent, “Those who are bound by our decisions usually believe they can take us at our word. Not so today.”

Indeed, the malleability of the court’s logic suggests these rulings are based less in law than in the personal beliefs of the men on the tribunal. One gets the sense they chose the desired result first, then backfilled whatever “reasoning” would get them there.

Which is not just Supreme hypocrisy, but also Supreme faithlessness. And, yes, Supreme sexism.

I once saw a protest sign to the effect that if men gave birth, contraception would be bacon flavored and dispensed from vending machines. Can anyone argue the truth in that? Would we even be having this debate if some company had a religious objection to Viagra — or vasectomies?

And how far down the line must a company’s religious scruples be honored anyway? If it is too much to ask Wheaton College to fill out a form because an employee will be “triggered” to buy contraception on her own, does the school also have a right to scrutinize and approve other purchases made with the salary she earns from them? If she buys whiskey or pornography with “their” money, does the school have a right to object?

Not to mention the frightening precedent the court is setting in the name of religious liberty. It makes faith a potential get-out-of-jail-free card, exempting the holder from any law he finds onerous. Given that Mormons once embraced a theology of racism and evangelical Christians still deny basic freedoms to gay people, the danger of this is obvious.

In its rush to confer personhood on organizations and constrain women’s choices, the court steers us toward a day in which corporate rights would trump human rights and you could no longer take for granted that you would be served by a given business without first checking to make sure you didn’t offend the owner’s religious sensibilities. It’s hard to imagine what that world would be like.

Pretty soon, we may not have to.

 

BY: Leonard Pitts, Jr., Syndicated Columnist, The Miami Herald; Published in The Seattle Times, July 13, 2014

July 14, 2014 Posted by | Contraception, Hobby Lobby, Supreme Court | , , , , , , | Leave a comment

“The Default Setting”: Why Your Employer Can’t Cut Off Your Contraception Coverage

On the Fourth of July, while you were stuffing your face with patriotic burgers and watching patriotic fireworks, the Supreme Court handed down an emergency injunction in a case involving Wheaton College’s objection to the Affordable Care Act’s contraception benefit, a decision that acted as an addendum to the Hobby Lobby decision. As I ranted over here, this is the decision that could really open the floodgates to thousands of claims from all kinds of organizations and companies that don’t want to let their employees get contraception. But after thinking and reading about it for a while, there’s something I think everyone seems to be missing, and it could mean that no one is actually going to lose their coverage, even temporarily.

I should say that it’s entirely possible that I’m completely wrong about this, and there’s some bureaucratic detail deep within the ACA that I’ve overlooked. But the first thing to remember is that the ACA requires that insurance plans cover a variety of kinds of preventive care, including contraception; this issue is about what exactly a company or organization has to do when they have an objection to contraception coverage. The Obama administration constructed an alternative arrangement, which until now was supposed to be used only for religiously affiliated non-profits but, after the Hobby Lobby decision, may have to be used for basically anyone, including for-profit companies. The way it works is that if your group doesn’t want to be tainted by the sin of contraception, there’s a form you file with the government stating your objection. You send a copy to your insurer or third-party administrator (TPA), and the insurer/TPA (I’m just going to say insurer from this point on) arranges for the coverage with the government, by getting reimbursed out of other funds.

The problem is that Wheaton College, along with dozens of other organizations that have filed suit, believes that just filling out this form and sending it to their insurer makes them complicit in sin, because doing so triggers the arrangement under which their employees will get coverage. Let’s leave aside the merit of this belief, but by granting the emergency injunction the Court’s majority essentially accepted that filling out the form and sending a copy to their insurer was indeed a burden on Wheaton’s religious freedom. This made Sonia Sotomayor absolutely livid, since just four days before the Court had used the existence of that very form as proof that there was a less restrictive alternative than the contraception mandate available.

So what Wheaton would prefer is that they not fill out the form and send it to the insurer. Instead, they want to send a letter to the government just stating their objection—a letter which wouldn’t have to inform the government of who their insurer is. In her dissent, Sotomayor warned that this could become a bureaucratic nightmare, because now the government has to figure out who the insurer is for every company that sends a letter, so they can get in touch with the insurer and arrange the alternate payment procedure for contraceptive coverage.

And this is where I’m puzzled. Because under the ACA, ordinary insurance coverage has to provide prescription contraception with no cost-sharing (meaning without copayment or deductable). That’s the default setting. So let’s say I’ve started a new non-profit aimed at educating America’s youth about the important cultural contributions of 1980s hair metal bands. I get health insurance for my employees, and because of the requirement in the ACA, it includes coverage for contraception. Then after spending an extended period listening to Stryper, I realize that contraception is sinful and try to deprive my employees of it.

Depending on the outcome of these cases, I may have a couple of options. I can file the original form with the government and send a copy to my insurer, in which case those two will arrange for my employees’ contraception coverage to continue. If I object to the form, as Wheaton College does, I’ll just send a letter to the government saying “I’ll have none of this!”

But since I don’t want to inform my insurer and thus trigger the alternate arrangement, my insurer has no idea that I object to contraception coverage. That means they’ll continue to provide it to my employees, as the law requires. If because of ordinary bureaucratic slowness it takes the government a while to find my insurer and inform them of my objection, my employees will still have contraception coverage in the meantime. Whether I’m active or passive the coverage continues, either because the alternate arrangement has been triggered, or because the insurer keeps doing what they’ve been doing because they don’t know of my objection.

To repeat, there may be something I’m missing here. But it seems that even if the Hobby Lobby and Wheaton cases impose more bureaucracy and make things more cumbersome for the government and insurers, as long as contraception coverage without cost-sharing is the default setting for insurance plans, people won’t actually have their coverage interrupted, no matter what the preferences of their employer.

 

By: Paul Waldman, Contributing Editor, The American Prospect, July 7, 2014

July 8, 2014 Posted by | Affordable Care Act, Contraception, Health Insurance | , , , , , | Leave a comment

“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

July 6, 2014 Posted by | Contraception, Hobby Lobby, Religious Beliefs, SCOTUS | , , , , , | Leave a comment

   

%d bloggers like this: