Civil and Human Rights

May We Have Another, Please?

The left lobbies the chief justice–again.




Reading the New Republic piece by Tom Donnelly of the Constitutional Accountability Center (a self-described organization of “constitutional progressives”), you’d think you’d gone back in time two years. “It’s the blockbuster case of the term,” Donnelly says, referring to a dispute over ObamaCare now before the Supreme Court. “It is also a crucial test of Chief Justice John Roberts’s leadership. . . . 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,” Donnelly goes on. A vote against ObamaCare would mean “a radical departure from well-settled precedent”–the subheadline says it would be Roberts’s “most radical decision”:


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.


Would you believe all this fuss is about a pair of cases in which the plaintiffs are seeking a narrow exemption from but one of ObamaCare’s mandates? The court heard oral arguments today, and we discussed the legal questions at stake in the Hobby Lobby and Conestoga Wood Specialties cases (and ObamaCare defenders’ distortion of them) yesterday. The Donnelly piece demonstrates that the cases carry quite a political charge as well.


So does a Washington Post op-ed by former law student Sandra Fluke, who makes the overwrought argument that a ruling in favor of the companies–turning the clock all the way back to December 2013, though only in the application of this particular provision of ObamaCare–would be “catastrophic”:


Allowing private employers to excuse themselves from health insurance and employment law could go much further than just contraception and reproductive health services. Allowing any private employer to dictate which laws fit inside its religious beliefs could upset the necessary balance of both religious liberty and employee health and safety laws. Depending on the exact ruling, any for-profit corporation could cut off its employees’ insurance coverage for blood transfusions, vaccinations or HIV treatment–all of which some Americans have religious objections to. Any critical health coverage the boss doesn’t agree with could be eliminated.


We never went to law school, but we feel confident in predicting that if the court does rule in favor of the plaintiffs, it will do so on considerably narrower grounds than these. (As an aside, does anybody really have a religious objection to “HIV treatment,” apart from those who reject modern medicine in its entirety?)


Especially bizarre is Donnelly’s contention that a ruling for the plaintiffs would be Roberts’s “most radical decision.” We’ve heard that sort of warning before. Remember when it would be “radical” and “unprecedented” to find, in the original ObamaCare case, that Congress’s powers under the Constitution’s Commerce Clause are limited? Donnelly praises Roberts’s decision that did just that as a “bold move,” an act of judicial statesmanship, because Roberts contrived a different means of upholding ObamaCare.


Then there was last year’s decision striking down a portion of the Voting Rights Act. That one wasn’t especially radical either, as even Donnelly argues:


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.


But there’s a simple explanation for that: The court held in Shelby County that Section 4 of the Voting Rights Act was unconstitutional because it discriminated among states based on data that were decades out of date. The “warning shot” was to give Congress an opportunity to correct the infirmity.


A ruling in favor of Hobby Lobby would have a more immediate effect than the court’s 2012 finding that the individual mandate wasn’t a legitimate exercise of the Commerce Clause–which is to say, it would have some immediate effect. But it couldn’t possibly be more radical than either the 2012 ObamaCare case or the 2013 Voting Rights Act ones, because those two cases broke new (if modest) ground in constitutional law. The Hobby Lobby and Conestoga cases, by contrast, raise a mere question of statutory interpretation.


That point Donnelly does not quite seem to grasp. He has a brief discussion (ours yesterday was better) of the 1990 case Employment Division v. Smith, which limited First Amendment claims of religious exemptions from generally applicable laws, and the 1993 Religious Freedom Restoration Act, which Congress enacted in response:


Congress responded to [Justice Antonin] Scalia’s decision by enacting a new law explicitly overturning [sic] 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.


That scenario is in the realm of fantasy. Even if Roberts is inclined to “adopt a new, more stringent test”–and we know of no reason to think he is, much less that four of his colleagues are–these cases afford him no opportunity to do so. The standard set forth in RFRA (which, to be technical, did not “overturn” Smith but enacted into statute protection for individual rights beyond those the court had found in the Constitution) is sufficient to decide the cases.


Donnelly seems to be hoping to discourage the chief justice from ruling in the plaintiffs’ favor at all, not just to refrain from approaching the case in a fantastically overbroad way. Two years ago, of course, Roberts at least created the appearance that he is responsive to that sort of political pressure. Thus we suppose we’d do the same thing if we were a left-wing legal commentator, on the theory that there’s nothing to lose by trying.


Then again, if Roberts does make decisions with an eye toward his own reputation and the court’s, he may also find it desirable not to appear so easily rolled.


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