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The Fraudulent “Minimalism” of the Roberts Court

[ 181 ] July 7, 2014 |

Alito’s majority opinion in Hobby Lobby tried to sell it is a narrow one, leading to some predictable contrarianism. Alas, this narrative couldn’t even survive the week. Lithwick and West are great on the Wheaton College order:

The dissenters take issue with several aspects of the majority’s act. First is the professed scope of the Hobby Lobby decision. Try to remember all the way back to Monday, when, writing for the majority, Justice Alito folded up the decision into something he characterized as nearly trivial. Look, it practically fits into his pocket! The decision only applied to family-owned, closely-held corporations, he assured us. The ruling was not going to unsettle a thing. “Our decision in these cases is concerned solely with the contraceptive mandate,” he soothed. Nothing about the holding would undermine an employer’s responsibility to provide vaccines to his employees, or to abide by existing employment and antidiscrimination laws. “Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs,” he wrote. But nowhere in his opinion did Alito tell us how or why there would be no such fallout. It was an assertion; or, in light of what happened next, a nice little act of judicial three-card monte.

Justice Anthony Kennedy, in his own concurrence to Hobby Lobby, cautioned us not to read too much into the precedent that he had just helped set, insisting that the majority opinion “does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.” But Justice Ruth Bader Ginsburg, as she is so often reminded, was not born yesterday. In her Hobby Lobby dissent, she disputed the narrowness of the rule and charged that the court had just waded into a “minefield.” She was right.

In the hours after the Hobby Lobby ruling came down, the court was already kicking a host of cases back to various lower courts for reconsideration in light of the new rule. Three courts of appeals were told to revisit decisions, including at least one that involved an employer with religious objections to all 20 contraception methods guaranteed under the ACA, and not just the four ruled out in Hobby Lobby. Another is the appeal from an employer whose claims about burdens on his religious liberty started out as religious, but became a libertarian screed. “I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control,” Michael Potter, the head of Eden Foods confessed to MSNBC’s Irin Carmon last fall. “What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story.” That “religious” objection will now be taken seriously in the courts, bearing in mind, as Justice Alito cautioned, that “[i]t is not for us to say that their religious beliefs are mistaken or insubstantial.” These nearly instantaneous acts by the court quickly made the narrow little Hobby Lobby ruling seem like much, much more. (Meanwhile, at Guantánamo Bay, real-live detainees are now petitioning the court for the same personhood status as Hobby Lobby so that they too may exercise religious freedom.)

A couple additional points. First, I’m just amazed that anyone could have been fooled by Alito’s fauxminimalism at this late date. This strategy has been evident since before Alito joined the Supreme Court. We’ve seen it with church and state issues. We seen it with reproductive rights (Carhart II didn’t overrule Carhart I even though the judgments were reversed and the statutes essentially identical) and campaign finance. And, of course, we saw a faux-nanimous opinion on the Voting Rights Act cited four years later to assert a specious consensus in favor of reading Roger Taney’s theory of equal state sovereignty into the Constitution. How many times does Lucy have to take away the football before you get skeptical about this? I could (and have!) go on about this.

On a related point, I disagree with the argument that some experts have made about the Ginsburg dissent:

Ginsburg’s opinion, some legal experts say, may turn out to be a self-fulfilling prophecy. By stating that the opinion is much broader than the majority claims it to be, she may be providing lower-court judges with a stronger foundation to provide more religious exemptions in the future.

“If the dissenters had simply taken Kennedy at his word in his concurrence, and simply agreed it was narrow, the lower court judges would have had to work very hard to say this applies broadly,” said Eric Segall, a professor at Georgia State University College of Law. “Now they can just cite Ginsburg, and say she thought it applied broadly.”

If that sounds far fetched, consider that this kind of thing has not only happened before, it has happened recently. Last year, when the Supreme Court struck down part of the Defense of Marriage Act in U.S. v Windsor, Chief Justice John Roberts wrote that Kennedy’s majority opinion should not be construed as saying state laws barring same-sex marriage are unconstitutional. In another, much angrier dissent, Justice Antonin Scalia wrote that it pretty much did just that. “The majority arms well every challenger to a state law restricting marriage to its traditional definition,” Scalia wrote.

I just don’t buy the causal argument here. Alito’s opinion gave lower court judges an essentially vacuous balancing test they could use to advance their goals if they choose. They weren’t going to refuse to use it had Ginsburg not pointed it out. And I would say the same thing about Windsor; I don’t think Scalia’s dissent is what’s causing appellate court judges to strike down same-sex marriage bans. it appears to be having that effect only because Scalia’s point was right. Ginsburg had nothing to use by explaining the majority’s disingenuousness as far as I can tell.

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  1. Denverite says:

    I briefly mentioned this while traveling, but the Wheaton College kerfuffle was really weird. SCOTUS has been issuing injunctions — pretty much without comment — in religious accommodation cases since the Little Sisters case out of the Tenth Circuit in January. then you have that Sotomayor’s concurrence was very well-prepared, and the order wasn’t, indicating (to me) that she caught them by surprise. The fact that Breyer didn’t join the dissent supports this view.

    The long story short is that I think this was probably a pre-planned attempt by Sotomayor (and probably Kagan and RBG as well) to lay down a marker really emphasizing that a huge part of the Hobby Lobby rationale goes away if you strike down the religious nonprofit accommodation. I’m uncertain whether that’s counterproductive or not.

    • FlipYrWhig says:

      IANAL but I think the religious nonprofit accommodation went way too far. I don’t think a hospital or university has a religious purpose even if it is affiliated with a religious denomination that values healing the sick or educating the unenlightened. (A seminary would be a different story: there the training is specifically doctrinal.) IMHO they serve a secular purpose. If they aren’t, well, maybe the feds shouldn’t be giving them money to support their operation. If you want to be wholly denominational (and, I suppose, holy denominational), fine, but in that case public money should go bye-bye.

      YMMV and other acronyms as necessary.

      • Denverite says:

        I think the rationale was that this wasn’t a hill that the administration wanted to die on. They figured they could accommodate the religious nonprofits in a way that wasn’t very costly and that resulted in getting to the same place — the employees have access to no-cost-sharing contraceptives — so why rock the boat unnecessarily. (As support for this theory, note that the accommodation wasn’t added in the proposed regs until later in the process, when the nonprofits threw a fit.)

        • FlipYrWhig says:

          Yeah, savvy politics but not what I’d've best liked in terms of ideology. Not that that’s rare. They had to throw a similar sop to Stupak and Co. to get the law through in the first place.

        • Pat says:

          If they aren’t covering birth control they shouldn’t be covering Viagra or Cialis. No women’s sexual health, no men’s sexual health. Otherwise, it’s discriminatory.

          And the plans should be more expensive, to cover the costs of unintended, high-risk pregnancies exclusively with that group. An extra $50 monthly surcharge, noted on each paycheck, that their insurance costs more to assuage their employer’s so-called conscience.

    • politicalfootball says:

      I wonder if Scott agrees with you. He seems to think it’s necessary to make this argument:

      Alito’s opinion gave lower court judges an essentially vacuous balancing test they could use to advance their goals if they choose.

      But Sotomayor seems right that Wheaton renders this discussion obsolete. By issuing an injunction, the Supremes are endorsing the idea that the balancing test is probably vacuous, as Scott says.

      I admit I’m entirely ignorant on prior injunctions – and IANAL – but surely the logic of Hobby Lobby strongly suggests that injunctions for entities seeking to be exempt from paperwork are no longer viable, because Hobby Lobby pretty much endorsed the conduct that was subsequently enjoined. No?

      • Denverite says:

        but surely the logic of Hobby Lobby strongly suggests that injunctions for entities seeking to be exempt from paperwork are no longer viable, because Hobby Lobby pretty much endorsed the conduct that was subsequently enjoined.

        Yeah, it suggests it, but Alito went out of his way to say that he wasn’t resolving that question. So the injunctions aren’t really affected. I also have to confess that I don’t know if SCOTUS applies the same “likelihood of success on the merits” prong that non-SCOTUS courts do when considering an injunction pending review, so I’m not sure if the fact that Hobby Lobby implies/suggests that the accommodation is OK factors into the analysis.

    • Anglocat says:

      Notably, this isn’t a standard garden-variety injunction, but an order under the All Writs Act, pursuant to which, as Justice Sotomayor points out in her dissent, the Supreme Court can only grant an emergency injunction such as the one at issue if “the legal wrights at issue are indisputably clear.” (Dissent at 4)

      Sotomayor goes on to point out that disagreement between lower courts, usually viewed by the Supreme Court as evidence the legal rights at issue are not indisputably clear, is here used by the majority as evidence that the injections should be granted, since lower court division is a factor commonly used in deciding whether to grant certiorari-an entirely different standard. (Id. at 7-9)

      So, in fact, worse than you think.

  2. Racial Asshole says:

    The larger picture is the SCOTUS is reigning in the overreach of the other two branches of government…and for that, I applaud them.

    • carolannie1949 says:

      I suppose reigning in Overreach is just as good as reigning in the United States.

      But f they are reining in the overreach of the other two branches of government, pray tell who is to rein them in?

    • Hogan says:

      Yeah, just where does Congress get off passing laws that regulate interstate commerce and directing HHS to write regulations that reflect those laws? This is worse than Stalin’s gulags.

      • Arch Liberal says:

        I think you’re on to something.

        One party (and only one party) passes and signs into law a bill that leaves it to HHS who is controlled by…..drum roll please….the same party!

        Once the bill is passed, they can do as they please, change what they want, delay what they want or not enforce the parts they have decided are ‘inconvenient’.

        Yes, it’s bad.

        • Hogan says:

          One party (and only one party) passes and signs into law a bill that leaves it to HHS who is controlled by…..drum roll please….the same party!

          Because the other party refused to have anything to do with the process (except to say no), despite being offered many opportunities to contribute. You always seem to leave out that part.

          • Racial Asshole says:

            This reminds me of when Obama said that if Congress wouldn’t act on the DREAMERS, he would.
            The reality is congress DID act. They said NO!

            Republicans also said NO to ACA.

            • Hogan says:

              Republicans also said NO to ACA.

              But they didn’t have the votes to stop it, or any interest in solving the problems with health insurance. All they could do was be whiny babies and waste a bunch of time with votes to repeal that they knew they were going to lose.

              • Racial Asshole says:

                Democrats held ALL the levers of power and since they needed no votes in either house from Republicans, they could have crafted anything they wanted.

                Now, they all talk about how ObamaCare is flawed and need fixing.

                Looks like the courts might just fix it for ya’.

                • liberalrob says:

                  Democrats held ALL the levers of power

                  No comment. Thoroughly debated elsewhere.

                  Now, they all talk about how ObamaCare is flawed and need fixing.

                  Well, it is and it does. It ain’t gonna fix itself.

                  Looks like the courts might just fix it for ya’.

                  No, they’ll just exacerbate the flaws and harden them into precedents, as long as Conservatives are in the majority.

                • Hogan says:

                  Now, they all talk about how ObamaCare is flawed and need fixing.

                  Not all of them. Just the liberals.

                  Oh, you thought that was the same thing as Democrats? More fool you.

                • Racial Asshole says:

                  Socialists and communists are also liberals.

                • Socialists and communists are also liberals.

                  HA HA HA HO HO HEE HEE! You’re funny.

            • Greg says:

              One house did. Perhaps you should take refresher course on how a bill becomes a law.

        • Yeggman says:

          One party (and only one party) passes and signs into law a bill that leaves it to HHS who is controlled by…..drum roll please….the same party!

          So? Do you want Congress to be governed by liberum veto or something?

        • tsam says:

          And those regulations being left to the discretion of an executive can be changed at the whim of the next administration. That’s one of the reasons they aren’t clearly stated in the law. To allow some room for the executive to update and repair as needed. It’s not a complicated concept and it’s been used since the beginning of the republic.

          • Racial Asshole says:

            To allow some room for the executive to update and repair as needed.

            I can see that we disagree on the executive branch being able to rule at will. I don’t want executive “updating” or ruling. I want the legislature to legislate and the executive to simply execute those laws.

        • DrDick says:

          One party that was elected to a majority of seats in Congress by a majority of the voters. I am sorry, but just because you yell and throw tantrums does not give you the right to over rule the will of the American people.

          • Liberal Nitwit says:

            I’d like you to remember this moment when, at some time, maybe in the near future…the other party holds all the cards and does as it damn well pleases.

            Elections do, indeed, have consequences.

            • Hogan says:

              You’re probably too dumb to remember this, but we went through five and a half years of it recently, and a shit ton of people got killed, so why don’t you fuck off back to the 7-11 for another bag of Cheetos?

            • jim, some guy in iowa says:

              I can’t make up my mind: should I hear the voice of Col Flagg, from “MASH”, Inspector Scanlan, from “Barney Miller”, or Mr Raines, from “The Pretender” when I read these attempts at hard-nosed intelligence?

    • FlipYrWhig says:

      Apart from everything else, you mean “reining in.” No “g.” It’s a metaphor, see: pulling on the straps that go to the horse’s mouth in order to control the horse.

    • LeftWingFox says:

      Hey, I remember the last time someone used that argument on this blog. In the same thread they started praising Pinochet and calling for the execution of communists.

      • Aimai says:

        Calling for the execution of suspected and alleged communists, too. The people who were killed in Chile were not necessarily communists. Far from it.

    • DrDick says:

      By the way, you misspelled “Racist”.

  3. Alito badly split the baby, and opened-up a HUGE can of sick worms.

    When their docket is full of religious exception cases in the next few years, I hope the Fascist Five remember that they were the ones who did that to themselves!

    They didn’t have to take this case.
    They shouldn’t have taken this case.
    Now, they’ll have to live with the consequences of their own rabid and stupid conservative Christian beliefs.

    And please, Fascist Five, don’t come bitching to us when “Omar’s House of Halal Kebob’s” comes wanting to make sure they can practice Sharia Law in their business.

    You fucking idiot’s brought this on yourselves – and more sadly, you brought this on for the rest of us…

    • Denverite says:

      There are already a ton on religious accommodation cases on their way up. The Notre Dame case is probably the first one that will get there. Should be interesting. The judges at the COA level (Posner) and USDC level (Simon) are well-respected, and both were pretty powerful in rejecting the RFRA claims.

    • wjts says:

      Alito badly split the baby, and opened-up a HUGE can of sick worms.

      Worst David Cronenberg movie ever, or best David Cronenberg movie ever?

    • Arch Liberal says:

      This country was founded on religious freedom.

      To you it means nothing. But you’re not the only one that lives here.

      • rea says:

        As soon as they got over here, they started oppressing people who disagreed with them.

        http://en.wikipedia.org/wiki/Roger_Williams_(theologian)

      • Malaclypse says:

        Pennsylvania and Rhode Island were founded on religious freedom. The rest, not so much. Massachusetts was founded on escaping from the religious freedom that was found in Holland. New York was a colony grab. Most of the country was founded on using slaves to extract resources for private gain.

      • liberalrob says:

        To you it means nothing. But you’re not the only one that lives here.

        Neither are you, bub. And it’s not your health that’s being messed around with by irrational radicals and lunatics.

      • pedantic nerd says:

        We all read your sickeningly anti-Christian diatribes on the water thread yesterday. You have don’t have a leg to stand on whining about “religious freedom”. And as we’ve established over and over again, you keep barging in here when NOBODY FUCKING WANTS YOU HERE.

        You have no respect for the rights of others. You’re demonstrably anti-Christian and anti-freedom. So what the hell are you still doing here ranting about this bullshit?

      • DrDick says:

        Actually, there were at least as many petty criminals and useless aristocratic younger sons among the early colonists as there were religious refugees (a pretty small number over all). What is enshrined in the Constitution, as well attested in the writings of the authors, is freedom from religious influence on politics and law. That is just the opposite of what you are arguing for.

    • Anonymous says:

      …don’t come bitching to us when “Omar’s House of Halal Kebob’s” comes wanting to make sure they can practice Sharia Law in their business.

      The question is will they have to PAY for the enforcement of Sharia. ‘Cuz this is what the case is all about. Government forces business to PAY.

      Want an IUD? They’re still available even if your employer doesn’t want to pay for the insurance that includes them. Don’t like it? Find an employer that likes it.

      Personally, I would pay for you to have an IUD out of my own pocket. You may feel a little pressure…

      • MAJeff says:

        rape joke. Not surprising.

        • LeftWingFox says:

          Funny, after reading the awful twitter shit of people screaming at Amanda to “close her legs”, I started thinking that conservatives believed themselves to be frustrated Johns: “I’m paying women to have sex, nut they still won’t fuck me!”

          …and here’s Anon to make that frustration crystal clear.

      • liberalrob says:

        They’re still available even if your employer doesn’t want to pay for the insurance that includes them. Don’t like it? Find an employer that likes it.

        Can’t find an employer that likes it? Tough noogies. Go die.

        Megan McArdle, ladies and gentlemen.

        • Racial Asshole says:

          Go die.

          Yes, you’ll simply die if you can’t get one of the four out of twenty birth control methods paid for you instead of you paying for it yourself.

          Your life is OVER!

          • Elizabeth says:

            First point: I paid for my own health care by working at my fucking job and getting health benefits in return, you fucking moron.

            Second point: Last I checked you’re not my fucking doctor, so you have no ability to say what type of birth control is or isn’t appropriate for me.

            In conclusion: Fuck off.

            • Tehanu says:

              Elizabeth: Allow me to add three cheers — or three more Fuck offs, whichever you prefer. I’ll believe in “religious” objections to paying for gender-related medications when they stop paying for Viagra.

              • Tehanu says:

                er — that’s three more Fuck offs directed to Racial Asshole, Elizabeth. I meant to applaud you. Sorry if there’s any confusion. These assholes make me so angry I can’t see straight.

              • Racial Asshole says:

                when they stop paying for Viagra.

                As a lifestyle drug, I’m in complete agreement with you. If it’s a 20 year old male, not so much.

          • liberalrob says:

            Except it’s not four out of twenty, it’s twenty out of twenty. And my understanding is that for some women, it really is a matter of life and death (female biology, how does it work?). So yeah, lives really are potentially OVER behind this decision.

      • FlipYrWhig says:

        The government forces businesses to pay for plenty of things, like wheelchair ramps, shear walls for earthquakes, and various materials rated for fire safety. If I plead “religion!” can I get out of those too?

        • Racial Asshole says:

          Do you have a religious objection?

          • FlipYrWhig says:

            As far as you know I believe that fires are an expression of God’s will

            1 Corinthians 3:15 If any man’s work shall be burned, he shall suffer loss: but he himself shall be saved; yet so as by fire

            Hebrews 12:29 – For our God [is] a consuming fire.

            Matthew 13:42 – And shall cast them into a furnace of fire: there shall be wailing and gnashing of teeth.

            and hence building codes that impede the course of divinely-sanctioned fires abridge my ability to run my business in accordance with my religious principles.

            • Racial Asshole says:

              Are you a Christian?

              • wjts says:

                I’m a Zoroastrian and am oppressed by nanny-state arson laws.

                • Racial Asshole says:

                  Great!

                  Prove your longstanding and well accepted religion and that you have adhered to it for a long time and then sue under RFRA just like Hobby did.

                  That’s what the courts are for.

                • CharlesS says:

                  Where do you get “long stand and well accepted religion” as the basis for Alito’s decision? Or is it simply more project?

                • wjts says:

                  I am a recent convert to the world’s oldest revealed religion, but my beliefs are perfectly sincere: I need to burn your house down in the name of Ahura Mazda. Is tomorrow OK?

                • Aimai says:

                  Hobby Lobby couldn’t prove a “long standing” opposition to the birth control in question because they had happilly covered it under their insurance plan until 2012. They also couldn’t prove that Christianity as a religion forbade it since, of course, Christianity doesn’t–there are many practicing Christians who think they are full of shit. They also couldn’t prove that they had any serious moral qualms about abortion itself (not that the bc in the case cause abortions but, arguendo as they say) because they subsidize and do business with the Chinese who do have forced abortion and who also employ near slave labor conditions which result in death, dismemberment, and miscarriage for the laborers who produce Hobby Lobby’s goods. In addition to that the Greens are invested in companies that produce birth control so they literally profit from its production and sale.

                • jim, some guy in iowa says:

                  the courts are for long-form trolling?

                  reason 2,348 the law is better off without me

                • Bijan Parsia says:

                  Welcome to the fold!

              • FlipYrWhig says:

                FlipCo, my closely held corporation, is emphatically so.

          • Stag Party Palin says:

            There is no situation, absolutely none, for which there is no religious objection.

          • DrDick says:

            I have an objection to religion in the public sphere at all. I do not care what you believe or what you practice in the privacy of your own homes or places of worship, but it has no business in government or public spaces.

        • MAJeff says:

          Well, since disabilities are punishment for sin, by making accommodations you could be facilitating sin, and according to the Wheaton order that’s a violation of your religious liberty.

        • DAS says:

          You can get out of paying, because the least restrictive way for government to accommodate your religious beliefs while still achieving the desired public policy outcome would be for government to pay for your building’s fire proofing, if you have a religious objection (and you shouldn’t even be burdened with any paperwork that would make you state you have an objection, as actually asking government to cover the cost would obviously also be against your religion: I guess the government, thanks to NSA spying, is just somehow supposed to know who has religious objections to what policies). The SCOTUS ruling is all about socializing costs (and keeping profits private): which goes to show you that liberals, being socialists, are the real sexists or should love this SCOTUS ruling … or something.

      • Joshua says:

        The employer is actually paying the employee for his labor, in the form of health insurance.

    • Joanna says:

      Oh, these crusty old men will never personally be affected by these religious exemption cases. They’ve got it made. Sure would be fun if people started hucking rotten food at them though.

    • Justin says:

      Alito badly split the baby, and opened-up a HUGE can of sick worms.

      What a delightfully disgusting mixed metaphor!

  4. jon says:

    The Roberts court has always struck me as being exceedingly activist, with rulings that far exceed the questions before them.

  5. ddt says:

    Well, to help visualize scope, I did a map of what one site (http://www.politicususa.com/2014/07/01/list-100-plaintiffs-filed-opposition-birth-control-mandate-obamacare.html) called “The Dirty 100″ of plaintiffs following on the Hobby Lobby case, suing for exemptions. The Politics USA list was a little problematic — there were a few listed I had to leave out, as I could not verify — and Mother Jones lists fewer, but there were only a few companies that make retail products distributed elsewhere.

    http://twoangstroms.com/twoangstroms/2014/7/7/dataviz-in-the-wake-of-hobby-lobby

  6. Joe says:

    If anything, Ginsburg appeared to push Kennedy to write his concurrence, which would have been much better if it was merely one of result as compared to a statement along with his full concurrence with the majority, but at least it’s something.

  7. Jennifer Steele says:

    The BUTTHURT™ with this case is intense.

    (Pass the popcorn and get me another beer)

    • The Women of America says:

      That’s not butthurt, you pathetic troll, that’s RAGE.

      • Jennifer Steele says:

        RFRA is what allowed this.
        All the court did was decide if what Harry Reid and Chuck Schumer voted for and Bill Clinton signed into law was unconstitutional or not.

        You can’t have it both ways

        • Hogan says:

          All the court did was decide if what Harry Reid and Chuck Schumer voted for and Bill Clinton signed into law was unconstitutional or not.

          Really? You think that’s what was decided here? There is literally no beginnning to your talents.

        • The Women of America says:

          I was going to type out a rebuttal but then I realized that there was no point. This troll gets his information from the stupidest right wing tools on the internet and on the radio and he is incapable of grasping the details of something as complicated as a legal case.

        • liberalrob says:

          Every Republican in the Senate (except for Jesse Helms, oddly) also voted in favor. It was a bipartisan bill.

          So yeah, we can have it both ways. Because I’m sure none of those who voted in favor ever dreamed it would be used to deny someone a health benefit; otherwise it never would have come to the floor. Of course, those were in the days before the Contract With America; no one knew the sheer insanity coming down the pike.

          • FlipYrWhig says:

            Not to mention: did anyone debating RFRA ever consider whether a “corporate person” would be covered by it? I highly doubt it.

            • Racial Asshole says:

              All ya gotta do is repeal RFRA.

            • Jeremy says:

              From Justice Ginsburg’s dissent:

              “Had Congress intended RFRA to initiate a change so huge, a clarion statement to tha teffect likely would have been made in the legislation. See Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001) (Congress does not “hide elephants in mouseholes”). The text of RFRA makes no such statement and the legislative history does not so much as mention for profit corporations. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F. 3d 1114, 1169 (CA10 2013) (Briscoe, C. J.,concurring in part and dissenting in part) (legislativerecord lacks “any suggestion that Congress foresaw, let alone intended that, RFRA would cover for-profit corporations”).”

        • Greg says:

          This cause decided nothing about the constitutionality of the RFRA, or indeed the constitutionality of the ACA or the birth control mandate.

      • Timb says:

        Who drinks beer with popcorn? Jesus, Jennie, is there anything you do right?

    • Malaclypse says:

      The layers of subtext becoming text in this are fabulous.

    • DrDick says:

      I guarantee that no one is ever going to fuck you, JenBoob.

  8. liberalrob says:
    Ginsburg’s opinion, some legal experts say, may turn out to be a self-fulfilling prophecy. By stating that the opinion is much broader than the majority claims it to be, she may be providing lower-court judges with a stronger foundation to provide more religious exemptions in the future.

    Alito’s opinion gave lower court judges an essentially vacuous balancing test they could use to advance their goals if they choose. They weren’t going to refuse to use it had Ginsburg not pointed it out.

    Isn’t this essentially the same disingenuous argument put forth by those who are calling Edward Snowden a traitor for “revealing how we surveill terrorists” and therefore harming our national defense?

    It’s amazing that they assume LAWYERS are going to be too stupid to figure out the breadth of the decision, yet backwards tribal shepherds are savvy users of modern communications technology. “Legal experts” indeed!

    • Aimai says:

      Yes, this is a ridiculous argument. Perhaps if she’d only put on a blindfold and refused to issuing a dissent at all then the lower courts wouldn’t have even found out about the decision?

      • gocart mozart says:

        Liberals should be seen and not heard.

      • Denverite says:

        This isn’t 100% fair. You see this phenomenon fairly frequently. Advocacy groups often have to walk the fine line between vigorously opposing a particular initiative or whatnot and doing so in a way that will give their opponents support to construe the initiative as broadly as possible.

        I said in another thread, but we saw this in Colorado with the abortion funding amendment. When it was passed in the 80s, opponents offered all sorts of dire predictions about CU hospital not being able to accept a single state dollar if it performed a single abortion, regardless of how that abortion was paid for. Proponents poo-pooed the argument, got the amendment passed, waited a couple of decades, then started going after CU hospital for performing a single abortion while accepting state funds. As part of their argument, they said something along the lines of “see, even the opponents could see that the amendment could be construed this way.”

        It’s definitely a concern, though you and Scott are right that it’s not the only or even biggest one.

        • Aimai says:

          Sure, “as part of their argument” but they would have gone ahead and done what they did anyway without the “extra” argument. Just like Racial Asshole uses the RFRA which clearly didn’t include corporations to argue that what the hell, everyone could see Hobby Lobby coming a mile away.

        • DAS says:

          The “even though we claimed it wouldn’t, our opponents saw that the outcome they feared could happen, therefore it’s ok if it does happen” argument, though, gets into some serious Charlie Brown and Lucy Van Pelt territory: Charlie Brown says he won’t try to kick the football because Lucy could just yank the football away leaving Charlie to fall on his heiney, Lucy says “you’re just exaggerating” and then Charlie goes to kick the ball, Lucy pulls the ball away, Charlie falls on his heiney and Lucy says to Charlie “that wouldn’t have happened if you hadn’t given me the idea to do it” or “see, even you predicted that this would happen”. If that is how abortion opponents in CO operated or if that is how the SCOTUS majority is operating, it isn’t wrong for pro-choice activists to point out the possible slippery slope or for RBG to have written the dissent she wrote … it’s that the abortion opponents and the SCOTUS majority are Lucy Van Pelt level assholes and bullies.

          I would say you don’t criticize Charlie Brown for Lucy’s actions. You just don’t.

    • liberalrob says:

      Also, who are these “some legal experts?” Do they perhaps know how moronic their argument is, and therefore refuse to stand up for it publicly?

      • Jeremy says:

        Adam Serwer’s article quotes two law professors, Eric Seagall as Georgia State University and Adam Winkler at UCLA. In arguing against the idea, S. M. at The Economist‘s “Democracy in America” blog also quotes Kenneth Jost making the argument.

  9. Jeremy says:

    Agree with Scott’s analysis regarding the breadth of the opinion. Alito’s decision is written very broadly irrespective of his weak attempts to pretend the opinion is narrow. Ginsburg correctly points out that the opinion will invite future challenges by both closely held and public corporations (the Alito opinion does not in any way meaningfully distinguish between the two), but the fact that Ginsburg pointed this out does not somehow make this broad opinion broader.

    Applying the least-restrictive-means test as Alito applies it, it is essentially impossible to uphold any law against a RFRA challenge, because the government can always be required to spend money to fix whatever the problem may be. It is, for instance, certainly true that the logic of the opinion would apply equally to coverage of immunizations and blood transfusions, despite Alito’s lame statement that those procedures raise different interests and different least-restrictive-means analyses.

    One interesting and as-yet underplayed aspect of this decision is that I think it strengthens the case for challenging the constitutionality of RFRA. The Court went out of its way to hold (more than a little bit dubiously, as Ginsburg points out) that RFRA’s version of protecting religious liberty goes much farther than even the Sherbert line of cases invalidated in Employment Div. v. Smith. This, IMO, strengthens the case that RFRA impermissibly and unconstitutionally favors the religious over the non-religious. (One question is who would be the right plaintiff to challenge this law–perhaps an atheist woman employed by Hobby Lobby?)

    Now would not be the time to bring such a challenge, though, as it does not take a psychic to predict a 5-4 vote (or maybe even 6-3 or 7-2) vote upholding RFRA.

    • Gwen says:

      Every day I wake up and remember, “Scalia and Anthony Kennedy are both one day closer to retirement.” And it makes me happy.

    • Pat says:

      I think that the lack of clarity and focus in Alito’s opinion shows that he is a poor legal scholar, because he is making way more work for the court than he should be.

      • Timb says:

        Plenty of people on both sides claim he is very smart cookie. After all, it was his question to an unwitting Elana Kagan stand-in which basically caused Kennedy and Roberts to decide they could destroy campaign finance rules.

        Now where he and Kennedy and Roberts determine that corporations are people? I assume it’s a class thing; they have met so many earnest CEO’s who are just trryyyyiinnggg to make America better

        • Pat says:

          One can be a very intelligent individual, and yet still be a poor scholar. If a good legal scholar wrote an opinion, they would choose language and logic that constrains the opinion to address the issue at hand and only that issue. That’s a skill an intelligent individual can acquire if they work at it.

          They say that Ted Cruz is super intelligent, too, but his tactical sense has already been shown to suck through a wrench.

  10. randy khan says:

    The real question here is what Kennedy is thinking (if, you know, he actually is thinking). My commentary at the time that Hobby Lobby was released was that the majority is as broad or narrow as Kennedy thinks it is, and that his concurrence could be read as telling Ginsburg, et al. that he wasn’t going to let it be read broadly. I still think the first part is right, but I’m now much less confident about the second part.

    It gets more complicated by the note that the Court has been issuing stays in other similar cases. Maybe Kennedy thought this was just like the other cases and therefore of little bearing – and maybe he was a bit blindsided by both the written opinion and the dissent. Or maybe it’s a signal of where’s he’s coming out when those cases make their way up to the Court.

    • Denverite says:

      Maybe Kennedy thought this was just like the other cases and therefore of little bearing – and maybe he was a bit blindsided by both the written opinion and the dissent.

      Yes on the first, and I’m not so sure he didn’t write the order. It wasn’t Scalia or Breyer, and I doubt it was Thomas or Alito. That means a coin flip between Kennedy and Roberts, and if it was the latter, it was the worst thing he’s written that I’ve read.

      But I agree that the majority was blindsided by a really polished dissent on an injunction that issued as a matter of course in a ton of cases now.

    • liberalrob says:

      …his concurrence could be read as telling Ginsburg, et al. that he wasn’t going to let it be read broadly.

      Somehow I am not reassured.

      • randy khan says:

        I wasn’t *that* reassured before (in that it meant that the narrow reading was dependent on Kennedy not changing his mind or leaving the Court while a Republican was in office), and I am less so now.

  11. Joe says:

    Point of personal privilege — my niece is starting at The College of Saint Rose in the fall. Small world.

  12. DAS says:

    As I have stated before, it seems to me that the ruling will be interpreted broadly when the courts want to interpret it broadly and narrowly when the courts want to interpret it narrowly: for example

    * some fundamentalist business owner doesn’t want to pay overtime based on the parable of the workers in the vineyard? SCOTUS will rule, citing Hobby Lobby, that since there is another, less religiously restrictive way for government to achieve the same outcome (government pays the overtime wages) and the fundie business owner has a sincere religious belief, then SCOTUS will rule in favor of the fundie

    * a Jew requests an exemption allowing his business to file its tax returns by a date after April 15th (due to the close proximity of April 15th and Passover) without having to file an extension, pointing out that the government can easily accommodate his religious beliefs by not having a tax deadline so close to Passover … SCOTUS of course will tell the Jew that he could just file for an extension or file his tax forms early because neither is a substantial burden

    ***

    BTW, to show that there is a less restrictive alternative that achieves the same public goal, does a person or organization claiming an exemption under RFRA, as interpreted by the Hobby Lobby decision, have to show that there already is a less restrictive alternative or merely that there can be? For example, the “reasoning” in the Hobby Lobby decision is that there exists an alternative way of supplying birth control (the public goal) besides having Hobby Lobby provide/pay for insurance covering birth control. But what happens if that alternate mechanism is defunded? Would the Hobby Lobby ruling be automatically void? What about the fundie who doesn’t want to pay overtime? Under Hobby Lobby need he show that there already is a government program that could make up for the overtime he doesn’t pay or only that government, if it really cared about providing overtime wages, could develop a program that could pick up the tab?

  13. Timb says:

    Change Jewish guy to Muslim and Passover to Muslim holiday and you cooking with gas!

    Or turn abortifacients to peyote and watch the Court rule the other way

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