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This Day in Liberal Judicial Activism—August 9


1969—“Now is the time for Helter Skelter,” declares Charles Manson, triggering two nights of vicious killing by the “Manson Family” in Los Angeles. Some 2½ years later, in its own rampage (see This Day for Feb. 18, 1972), the California supreme court voids the death sentences that had been imposed on Manson and four other Family members. 

This Day in Liberal Judicial Activism—August 8


2005—NARAL unleashes a mendacious television ad against confirmation of John Roberts’s nomination to the Supreme Court. The ad features a woman injured in the 1998 bombing of an abortion clinic, attempts to link her injury to an amicus brief that Roberts filed on behalf of the United States in 1991, and says that Americans should oppose a nominee “whose ideology leads him to excuse violence against other Americans.”

Never mind that Roberts’s amicus brief, which argued that an 1871 law did not provide a federal cause of action against persons obstructing access to abortion clinics, did not take issue with the many laws that criminalize violence outside abortion clinics and did not in any way “excuse violence against other Americans.” Never mind that it was ludicrous to suggest that Roberts’s amicus brief was somehow responsible for the 1998 bombing (all the more so as the intervening enactment in 1994 of the so-called FACE Act imposed severe penalties against those obstructing access to abortion clinics yet failed to deter the bombing). And never mind that Roberts in fact had denounced abortion-clinic bombers as “criminals.”

Days later, under harsh criticism from its usual allies, NARAL pulls the ad.

2006—In an act of collective idiocy, the ABA’s House of Delegates approves the ABA task force’s insipid report on presidential signing statements, a report that earned scathing criticism from leading academics across the political spectrum.  


Obamacare’s Little Red Pill


By now, you’ve probably had the opportunity to read about Jonathan Gruber, the economist and Obamacare architect who was caught on camera admitting: (1) that the Obamacare tax subsidies challenged in Halbig v. Burwell and King v. Burwell were intended to work pretty much the way the statute says; and (2) the structure of that provision was designed to put pressure on the states as part of the “ugly” political fight over Obamacare. Although Gruber has since changed his tune, those two propositions will come as nothing new to our faithful Bench Memos readers.

You’ve probably also read the running commentary on Halbig by left-wing journalists who say, well, nobody they talked to at the time said anything about yanking tax subsidies from recalcitrant states. The New Republic’s Jonathan Cohn, for instance, recently discovered that he himself explained to NPR back in 2010 that the Obamacare tax subsidies worked exactly the way the statute says. He still can’t quite convince himself that he was duped, saying, “I still think they are telling the truth. I still think it’s not a close call.”

It’s almost as if the media were transported to the Matrix and asked to choose between the red pill and blue pill – between truth and fiction – and they all chose the blue pill.

For every journalist in denial, though, there’s probably several people who took the red pill and are asking serious questions: Did the administration lie to us? Was the ACA all just a big mistake? How could this have happened? 

The definitive political history of Obamacare remains to be written, but here are a few thoughts.

First, I have no doubt that many non-political supporters of Obamacare sincerely believed what the administration’s surrogates and wonks were telling them. The administration would have wanted to keep the law’s highly political considerations out of public sight, safely tucked away from the policy discussion. Revealing the Chicago-style incentives behind the ACA’s mandates would have turned a debate about universal health care into a debate about freedom and individual liberty.

It’s worth remembering that the administration had no political reason to be candid about these highly coercive incentives and every political reason not to be candid. Journalists who styled themselves as policy experts committed malpractice by not digging deeper, especially analysts like Ezra Klein who at the time openly advocated ignoring the text of the bill. But by concealing the law’s coercive aspects, and with the assistance of a conveniently incurious news media, the administration breached faith with its own supporters.

Second, people who supported the fictional version of Obamacare should be hopping mad about being misled. The administration and congressional Democrats calculated that ramming through a broken Senate bill under cover of night would be better than passing anything with bipartisan support, even though the bill had massive policy problems that served “ugly” smashmouth politics. Rewriting the law later wasn’t a sign of good faith; it was a sign that the administration wanted more than anything else to avoid admitting the failure of its strategic deception.

Third, now that we have one of Obamacare’s architects describing the tax subsidy restrictions as “ugly” politics, the government can no longer plausibly claim in Halbig that Congress could never have intended to punish the states for failing to create exchanges. In fact, we now also know through a House committee report that the administration relied on similar hidden political considerations when it attempted to rewrite the tax-subsidy provision.

The government’s only remaining legal argument, that the statute is ambiguous, is a reach. Even the Fourth Circuit, which found ambiguity in the statute and ruled 3–0 against the plaintiffs, concluded that “the defendants have the stronger position, although only slightly.” Although I disagree with the Fourth Circuit’s conclusion on the merits, its comment should give Halbig critics pause about disparaging the D.C. Circuit opinion as “shamefully dishonest” or nothing more than the product of “kill-Obamacare judges.” If even the Fourth Circuit thinks the interpretation is a close call, the least that honest reporters can do is ignore the ideologues who are trying to get them to prejudge the case in the media.

Getting Things Backwards


As Justice O’Connor once recognized, the Supreme Court’s pro-abortion rulings “make[] it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” Alas, O’Connor herself later adopted the same practice of ad hoc nullification when she co-authored the majority opinion in Planned Parenthood v. Casey (1992) and when she joined the Court’s opinion striking down Nebraska’s ban on partial-birth abortion (Stenberg v. Carhart (2000)). So long as Planned Parenthood v. Casey survives, the “abortion distortion” will continue to impair the ability of citizens to make abortion policy through the ordinary democratic processes.

Linda Greenhouse thus gets things backwards when she complains that judges haven’t been willing to treat abortion as “a right like any other.” But she inadvertently stumbles on the truth when she observes that “there are constitutional rights and then there is abortion” and distinguishes abortion from “those rights the Constitution actually protects.” (Emphasis added.) 

This Day in Liberal Judicial Activism—August 7


2006—Outgoing American Bar Association president Michael Greco, a zealous liberal who stacked an ABA task force on presidential signing statements with fervent opponents of the Bush administration and who did his utmost to load the ABA’s judicial-evaluations committee with hard-core partisans, delivers a ridiculously pompous farewell address. For example: “Our fellow Americans, as never before, are looking to our Association with hope, with trust, and with respect for our leadership.” And: “In our generation, it is the lawyers of America who by destiny and by choice are the guardians of the walls of freedom. It is the American Bar Association that is protecting the separation of powers and the balance of powers by checking the excesses of any branch of government that would overreach.”


Followup on Harris v. Quinn


The National Right to Work Foundation notes this week that, in light of its U.S. Supreme Court victory a few weeks ago in Harris v. Quinn, “government union bosses from across the country are now abandoning their forced dues demands on home-based personal care and childcare providers,” and then gives chapter and verse. Relatedly, George Leef has this to say this week in favor of right-to-work laws.

This Day in Liberal Judicial Activism—August 6


1993—In a harbinger of nominations to come, President Clinton’s first batch of nominees to the federal courts of appeals includes Tennessee supreme court justice, and liberal judicial activist, Martha Craig Daughtrey. Among other things, as a state supreme court justice, Daughtrey never voted to affirm a death sentence, and she joined an opinion condemning the death penalty (see This Day for Apr. 26, 1987). In an opinion full of frolics and detours, she extrapolated a state constitutional “right of procreational autonomy” from the provisions of the state constitution that protect freedom of worship, that prohibit unreasonable searches and seizures, that guarantee freedom of speech, and that regulate the quartering of soldiers in homes. (See This Day for June 1, 1992.) She also found that the state constitution protects obscenity. (See This Day for May 17, 1993.)

2012—In an opinion for a divided panel of the Ninth Circuit (in Jackson v. Nevada), arch-activist Stephen Reinhardt, joined by Obama appointee Mary H. Murguia, rules that a man convicted of multiple charges relating to the sexual assault of his “on-again, off-again girlfriend” (Reinhardt’s indelicate phrase) was entitled to federal habeas relief because the state courts had supposedly unreasonably applied clearly established Supreme Court precedent regarding his constitutional right to present a defense.

But, as the unanimous Supreme Court will rule less than a year later in a per curiam summary reversal, the evidence that the defendant had sought to admit was inadmissible as a matter of state law, and the “constitutional propriety” of the rule that the state courts applied, far from being contrary to clearly established Supreme Court precedent, “cannot be seriously disputed.”

As the Court observes, by limiting federal habeas relief to cases in which there has been a violation of “clearly established Federal law, as determined by the Supreme Court,” the federal law known as AEDPA requires “substantial deference” to state convictions. The Court faults Reinhardt for instead “framing our precedents at such a high level of generality” that “even the most imaginative extension of existing case law” is mispresented as supposedly clearly established federal law.

King Might Be Headed to the Supreme Court; Perhaps Halbig To Follow


Last week, just over a week since what was probably the fastest circuit split in history, the plaintiffs in King v. Burwell filed their petition for certiorari with the Supreme Court.  That puts the case on a fast track to be considered by the Court during the upcoming Term.  And a good thing, too: this issue is already causing significant uncertainty in the insurance markets and ought to be decided conclusively as soon as possible.

Here’s how the process works: normally parties have 90 days to petition from an adverse ruling, but this issue is of such national importance that petitioners have moved forward with lightning speed.  The government will have until September 3, 2014 to file a brief in opposition to certiorari, and then the petitioners will have another 14 days to reply.  That means the briefing for the case should be done by mid-September, so the Court could be discussing the case and voting on certiorari as early as October.  An October conference would leave ample time to get on the oral argument calendar for this term.

The administration and its surrogates have been pushing the line that the split between the D.C. Circuit’s Halbig case and the 4th Circuit’s King decision is insignificant and assuring court watchers that a D.C. Circuit en banc panel will vacate the Halbig ruling.  

But I’m not so sure.

Clearly this type of case is exactly what the President had in mind when he made his court-packing blitz last year.  Rather than a 4-4 split of Republican and Democratic nominees on the D.C. Circuit, we now have a 4-7 split, with four of those Democratic nominees having come from this president, three of whom were specifically chosen in a campaign to eliminate the filibuster and pack the court.  Although the D.C. Circuit historically does not take many cases en banc — regarded as a sign of its collegiality — it’s possible that things have changed since the president’s nominees were seated.

But now those judges will have to decide whether they want their first high-profile act on the court to be one that is baldly political: overturning a meticulously-reasoned decision that overturned the IRS’s attempt to rewrite the Affordable Care Act.  It would make the new judges look like presidential pawns who are attempting to save his bacon, lowering them to the level of the disgraced and politicized IRS itself. 

Even if the D.C. Circuit judges are willing to take the fall for the President in this case, there probably won’t be time to undo the circuit split before the Supreme Court makes its decision about whether to hear the case. (If the D.C. Circuit could rush through it, that would look obviously political.) The government’s motion for rehearing en banc is due soon, but the court often takes months to decide the motion, schedule any additional briefing, and set an en banc hearing date. 

Thus the Supreme Court will likely be faced with an active circuit split when it considers the King petition.  It could, of course, refuse to decide until the outcome of the split becomes clear, but I think that is unlikely.  Even if the current split were resolved by a D.C. Circuit flip-flop, an Oklahoma district court is likely to issue an opinion soon that could easily lead to a 10th Circuit decision against the Administration.  Another case working its way through the lower courts in Indiana could deepen the split.  This issue is of obvious national importance, and fits into a pattern of executive overreach by this Administration that the Court has rebuked repeatedly (and often unanimously).  

The American people deserve to have the issue decided once and for all, and sooner rather than later.

Dream or Nightmare?


Two years ago, then-DHS Secretary Janet Napolitano issued a three-page memorandum setting forth a policy of non-enforcement of federal immigration laws in favor of a class of illegal aliens meeting certain criteria. That policy has come to be known as “Deferred Action for Childhood Arrivals” (or DACA).

Last month, in Arizona Dream Act Coalition v. Brewer, a Ninth Circuit panel preliminarily enjoined the state of Arizona from implementing a policy that prevents DACA recipients from obtaining Arizona driver’s licenses. The opinion, authored by liberal diehard Harry Pregerson, holds, among other things, that the Arizona policy likely violates the Equal Protection Clause.

Pregerson’s reasoning strikes me as highly suspect. He maintains that there is no rational basis for Arizona to distinguish between illegal aliens subject to DACA non-enforcement (who are not eligible for driver’s licenses under Arizona’s policy) and illegal aliens who have applied for adjustment of status and cancellation of removal (who can receive driver’s licenses). Pregerson asserts that Arizona is “assum[ing] for itself the federal prerogative of classifying noncitizens.” But what Arizona is doing is building on existing federal classifications of employment-authorization recipients. (Pregerson also contends that Arizona’s policy is contrary to what Arizona law “expressly requires,” but he provides no reason why he shouldn’t defer to state officials’ understanding of state law.)  

On the state’s argument that issuing driver’s licenses to DACA recipients might allow them to access governmental benefits to which they are not entitled, Pregerson recites testimony from state officials that (in his summary) “they had no basis whatsoever for believing that a driver’s license alone could be used to establish eligibility for such benefits.” (Emphasis in original). But the relevant question isn’t whether a “driver’s license alone” would suffice, but rather whether a driver’s license might facilitate the process.

Pregerson’s opinion, I’ll note, gets off to a telling start. His first sentence asserts that the “federal government has enacted a program” called DACA, phrasing that gives the false impression—later corrected, to be sure—that Congress enacted legislation that created a program.

President Carter appointed Pregerson to the Ninth Circuit in 1979, when Pregerson was 56. Now 90, he remains in active (rather than senior) status and continues to wreak havoc. Pregerson would be much more notorious for his judicial excesses had he not been overshadowed for the past 35 years by his even more outrageous colleague Stephen Reinhardt.

Re: White House Misdirection on Executive Powers


I missed Jonathan Adler’s excellent earlier post on the same topic. As he sums it up:

[T]he real objections to the President’s use of executive authority are not to the frequency of EOs [executive orders], signing statements, or regulations, but to the substance of specific actions and decisions that have been made.…

[T]hose responding to claims of executive overreach should actually respond to allegations of executive overreach. Pointing to pretty charts about the number of EOs is not a serious or substantive response.

The Case Against Rehearing En Banc in Halbig


In today’s Wall Street Journal, Adam J. White has an excellent op-ed (subscriber-only, I think) arguing that the recent D.C. Circuit panel decision on Obamacare exchange subsidies in Halbig v. Burwell doesn’t meet the D.C. Circuit’s very high standard for en banc review. His closing paragraph:

Those who claim that the D.C. Circuit will rehear the case en banc do no service to the court’s judges, who know the threat that overtly politicized en banc rehearings pose to the court’s collegiality. The controversy surrounding HHS’s federal exchanges should be resolved promptly by the Supreme Court. There’s no need to tarry any longer at the D.C. Circuit. 

White House Misdirection on Executive Powers


President Obama’s aggressive use or abuse of his executive powers is arousing intense controversy. On the Washington Post’s Monkey Cage blog, Bowdoin politics professor Andrew Rudalevige explains very clearly how the White House’s primary line of defense—that Obama has issued fewer executive orders than most of his recent predecessors—is an exercise in misdirection. Executive orders, after all, are merely one type of presidential directive, whereas the controversy

is about executive actions more broadly. While Obama issued only 20 executive orders in 2013 (the lowest single-year total in more than a century), that same year he issued 41 presidential memoranda to the heads of departments and agencies, along with nine additional presidential “determinations” designed to serve as the basis for bureaucratic behavior.

And there are lots of other avenues for that. We could include regulatory action, signing statements, legal interpretations, and administrative orders technically issued by department heads but at the behest of the White House.  

Rudalevige then runs through “a few of the greatest hits [eight, actually] touted by those who feel Obama has abused his executive authority” and points out that none involved Obama’s use of a formal executive order. (H/t Jonah Goldberg.)

No, Chris Christie’s Judicial Nominees Were Not Conservative


As frequent Bench Memos readers will know, I’ve long been following Governor Christie’s judicial misadventures.  I and my colleagues at JCN were encouraged by his campaign pledges to remake the New Jersey judiciary and nominate judges who would “interpret laws and the Constitution, not legislate from the bench.” But his subsequent failure to make good on these promises has been at best profoundly incompetent and at worst a dishonest sellout of the judiciary to advance his personal political goals.  That’s why we launched and have been highlighting his judicial record in TV, radio, and digital ads.

The campaign has garnered significant press attention, interfering with Christie’s post-scandal comeback campaign. So Christie has finally responded, calling JCN “cowards” and accusing us of not supporting his conservative nominees.

Governor Christie is indeed back. Back to his old form of name-calling and bullying when cornered.

In this case we can add un-informed bullying.

JCN actually gave qualified support to his first nominee Anne Patterson based primarily on assurances about her judicial philosophy from the governor’s office. We haven’t made that mistake again. That is not cowardice, that is conscience.

So, yes, we haven’t supported the cronies and hacks he has put forth as judicial conservatives — and which he still claims were conservative nominees.

We urge the governor to criss-cross the country defending his “conservative” nominee Bruce Harris who had to admit he had hardly ever stepped into a courtroom, but whose shrewd legal mind had concluded opposition to same-sex marriage was equivalent to slavery and segregation.

Governor Christie’s support of Sonia Sotomayor — and his dismissive attitude toward those who opposed her — should be sufficient evidence of where his constitutional compass points.

Or perhaps that’s just a weathervane.






Misapplying McCullen v. Coakley


In the Court’s recent ruling in McCullen v. Coakley, all nine justices agreed that the Massachusetts statute that created a general no-speech zone on public streets and sidewalks within 35 feet of an abortion clinic violated the First Amendment.

Although the justices divided sharply, 5-4, on their reasoning, all agreed that the effect of the statute on speech on public streets and sidewalks was critical to their analysis. Chief Justice Roberts’s majority opinion (joined by the four liberals) emphasized that “public streets and sidewalks” are “traditional public fora”—“areas that have historically been open to the public for speech activities”—and that the “government’s ability to restrict speech in such locations is ‘very limited.’” Justice Scalia’s concurrence similarly emphasized that public streets and sidewalks “are traditional forums for speech on matters of public concern” and thus “‘hold a special position in terms of First Amendment protection.’”

Evidently missing this critical point, a state judge in North Carolina has reportedly purported to apply McCullen to protect persons arrested for protesting inside North Carolina’s legislative building. But there is nothing in the news report about the ruling that would remotely suggest that the inside of North Carolina’s legislative building would qualify as a full-fledged traditional public forum. And it would be surprising indeed if there has historically been unrestricted public access to that building for speech activities.

This Day in Liberal Judicial Activism—August 4


1973—On vacation in Yakima, Washington, Justice William O. Douglas issues an opinion in support of his single-justice order the previous day that purported to bar U.S. military operations in or over Cambodia. (Specifically, his order vacated the stay that a federal court of appeals had entered of a district-court order to such effect.)

Never mind that Justice Thurgood Marshall had, on August 1, denied the same application, or that the Court’s usual practice, as Douglas noted, “is to refer [a] second application to the entire Court.” Such practice, Douglas asserts, “cannot be followed” when the Court is in recess, “for the Justices are scattered,” making “[g]roup action by all Members … impossible.”

Claiming to “pay the greatest deference” to Justice Marshall’s denial, Douglas instead analogizes the legal issue to the “classic capital [i.e., death-penalty] case,” and blithely bulldozes past issues of justiciability, standing, and the political-question doctrine.

Disputing or disproving Douglas’s assessment that collective action by the justices is impossible during the recess, the Court, in an order written by Justice Marshall and agreed to by the seven other justices, overturns Douglas’s action that same day. Douglas, in dissent, contends that the statutory quorum rule governing the Court (which provides merely that six justices “shall constitute a quorum”) means that the Court can act only when at least six justices are physically present in the same place and does not allow the “telephonic disposition of this grave and crucial constitutional issue.”

2010—The Senate, by a 63-37 vote (with Democrat Ben Nelson of Nebraska among those voting no), confirms President Obama’s nomination of Elena Kagan to the Supreme Court.

2010—In a ruling that even a prominent proponent of same-sex marriage condemns as “radical,” Judge Vaughn Walker continues his wild course of misconduct in Perry v. Schwarzenegger by declaring that California’s Proposition 8 violates the federal Due Process and Equal Protection clauses.

Among other things, Walker denies that the male-female union has ever been one of the “characteristics” of marriage in the United States. In absurd “findings of fact,” Walker claims that the “evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes” and that the “evidence shows beyond debate that allowing same-sex couples to marry has at least a neutral, if not a positive effect on the institution of marriage.” Never mind that plaintiffs’ own experts had rejected this latter proposition.

Ramona Ripston, executive director of the ACLU Foundation of Southern California (which filed pre-trial and post-trial amicus briefs in support of plaintiffs), publicly celebrates Walker’s ruling: “We rejoice at today’s decision but there’s a long road ahead toward establishing true marriage equality for same-sex couples.”

The next stop in that “long road ahead” is the Ninth Circuit, where—surprise!—Ripston’s husband, arch-activist Stephen Reinhardt will be assigned to the panel reviewing Walker’s ruling. Notwithstanding his wife’s personal involvement in the same case, Reinhardt will decline to recuse himself.

This Day in Liberal Judicial Activism—August 3


1993—By a vote of 96 to 3, the Senate confirms President Clinton’s nomination of D.C. Circuit judge Ruth Bader Ginsburg to the Supreme Court seat vacated by Justice Byron White. Confirmation comes a mere seven weeks after Clinton announced his decision to nominate Ginsburg.

And how, after all, could there have been any controversy over a former ACLU activist who, among other things, had stridently criticized the Supreme Court’s 1977 ruling that the Constitution does not require taxpayers to fund abortions … who had stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy … who had proposed abolishing Mother’s Day and Father’s Day and replacing them with an androgynous Parent’s Day … who had criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles … and who had urged that prisons be co-ed rather than single sex? (See here for documentation of the last several points.) That’s what the media call a “mainstream” and “moderate” nominee.

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Secret Rehnquist Lunch with Bush 43 Disclosed


Here’s a revelation: Ten years ago, when rumors about Chief Justice Rehnquist’s declining health and possible retirement were circulating, President George W. Bush invited Rehnquist to the White House for lunch and Rehnquist accepted. At the lunch, Bush and Rehnquist discussed the Court. Asked why Bush invited him, Rehnquist replied:

Maybe to talk about the court. Maybe because he likes me. I like him.

Actually, I’m making this up. Had anything like that happened, there would have been a massive media outcry. Together with the secret lunch, Rehnquist’s hypothetical statement that he likes Bush would have been cited as cause for his recusal in cases important to the president. Knowing that any such lunch would invite intense media examination and calls for investigation, the Bush White House never would have contemplated the lunch. (President Bush did invite all the justices and their spouses to a dinner near the end of his presidency.)

It turns out, though—as I’ve learned from this article in which reporter Joan Biskupic recounts her recent interview with Justice Ginsburg—that President Obama and Ginsburg had lunch at the White House last summer, that they talked about the Court, and that Ginsburg offered the explanation I quote above (including “I like him”). Don’t hold your breath waiting for the media outcry.

Let me hasten to add that I don’t have clearly in mind where the ethical line ought to be drawn on contacts between the president and a Supreme Court justice, and I am not contending that there was anything improper about the lunch. But I do think that the ethical line ought to be the same for Democratic presidents and liberal justices as it is for Republican presidents and conservative justices. 

Ginsburg’s Hobby Lobby Gaffes


Let’s set aside the legal errors that pervade Justice Ginsburg’s dissent in Hobby Lobby and focus only on her public misstatements about the case: Ginsburg bizarrely asserts that her dissent “really didn’t turn on the difference between a corporation and a sole proprietorship.” She mischaracterizes (see second paragraph here) the majority’s opinion as resting on the Free Exercise Clause rather than the Religious Freedom Restoration Act. And she doesn’t understand that it was the Obama administration, not Congress, that imposed the HHS mandate.

To be clear: I’m not suggesting that Ginsburg has slowed. Rather, I think that her gaffes provide further evidence that her ideology, rather than careful legal analysis, drove her to the result she reached in Hobby Lobby

For Ginsburg, a Human Being Isn’t a RFRA “Person” Either


I’ve discovered that I have been far too charitable to Justice Ginsburg regarding her Hobby Lobby dissent.

Recall that the first ground on which Ginsburg would have ruled against Hobby Lobby was her (badly misguided) proposition that a for-profit corporation is never a person capable of an exercise of religion within the meaning of the Religious Freedom Restoration Act. (Justice Breyer and Justice Kagan refused to join this part of Ginsburg’s dissent.) Well, it turns out that Ginsburg also somehow believes that a flesh-and-blood human being, when operating in the world of commerce, is also not a person capable of an exercise of religion within the meaning of RFRA. As she tells Katie Couric (somewhere around the 2:20 mark in the “Hobby Lobby Dissent” video available here):

But I should stress that my Hobby Lobby dissent really didn’t turn on the difference between a corporation and a sole proprietorship. My point was that no employer, whatever the business form, should be able to transfer that employer’s religious belief onto people who do not share that belief.

So Ginsburg is now telling us that her real “point” isn’t the actual ground she set forth. Worse, what she now calls her real “point” is inconsistent with her analysis (as well as with any conceivable reading of RFRA). In arguing that the Free Exercise case law that preceded RFRA provided “no support for the notion that free exercise rights pertain to for-profit corporations,” Ginsburg tried to distinguish away Gallagher v. Crown Kosher Super Market (1961) on the ground that four of the five challengers “were human individuals, not artificial, law-created entities, so there was no need to determine whether the corporation could institute the litigation.” But she now maintains that human individuals engaged in commerce (as the individual challengers in Gallagher were) somehow have no RFRA rights at all.

From Ginsburg’s own account, it would appear that she was driven by her ideology to contort the meaning of RFRA to reach the result she wanted to reach. (Ginsburg’s notion that a person invoking the protections of RFRA “transfer[s]” his beliefs onto others also reflects her hostility to RFRA.)


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