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The Fraudulent “Minimalism” of the Roberts Court

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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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