Bench Memos

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This Day in Liberal Judicial Activism—July 9


1987—In 1986, the Supreme Court ruled in California v. Ciraolo that a person growing marijuana in his back yard does not have a reasonable expectation of privacy that protects his premises against inspection by police lawfully operating an aircraft at an altitude of 1,000 feet. Exercising the illogic that will earn her an appointment by President Clinton to the Eleventh Circuit in 1993, Florida justice Rosemary Barkett (in State v. Riley) rules that surveillance of a back-yard greenhouse by a helicopter lawfully flying at 400 feet violates the Fourth Amendment because “[s]urveillance by helicopter is particularly likely to unreasonably intrude upon private activities.”

But the relevant question, as the Supreme Court makes clear in reversing Barkett (in Florida v. Riley), is whether the defendant had a reasonable expectation of privacy in the first place, and that question turns, under Ciraolo, on whether “helicopters flying at 400 feet are sufficiently rare in this country to lend substance to [the defendant’s] claim that he reasonably anticipated that his greenhouse would not be subject to observation from that altitude.” 

Hobby Lobby Dissent on Accommodation


Justice Ginsburg’s dissent in Hobby Lobby purports to offer three independent grounds for ruling against Hobby Lobby: (1) for-profit corporations have no rights under the Religious Freedom Restoration Act, as they are not persons capable of engaging in an exercise of religion (pp. 13-20) (again, Justices Breyer and Kagan don’t embrace this ground); (2) the HHS mandate does not impose a substantial burden (pp. 20-23); and (3) the government has shown both that the HHS mandate furthers a compelling governmental interest (pp. 23-27) and that it is the least restrictive means of furthering that interest (pp. 27-31).

For reasons I have spelled out before, I think that Ginsburg is wrong on all counts.

I’d like to focus here on how feeble Ginsburg’s response (pp. 29-30) to Justice Alito’s majority opinion is on the question whether the existence of the so-called accommodation for religious nonprofits means that the government flunks the least-restrictive-means prong. Again, keep in mind that Alito used the accommodation (and the government’s robust claims about its supposed virtues) merely to show that the government had failed to make its necessary showing under RFRA that the HHS mandate was the least restrictive means of furthering its (supposed) compelling interest. In other words, because, on the government’s own account, the accommodation would be less restrictive than the HHS mandate of Hobby Lobby’s religious liberty (while serving the government’s stated interests equally well), the government failed to establish that the HHS mandate was the least restrictive means of furthering its interests.

What does Ginsburg have to say to dispute Alito on this point? Nothing, really.

First, Ginsburg contends that the majority “hedges” by not deciding whether the accommodation would itself satisfy RFRA. But what Ginsburg disparages as a hedge is simply the properly limited use that Alito makes of the accommodation. (A mere three days later in their Wheaton College dissent, Ginsburg, Sotomayor, and Kagan falsely claimed that the Court “retreat[ed]” from a supposed embrace of the accommodation in Hobby Lobby.)

Second, Ginsburg complains in a footnote (30 n. 27) that Hobby Lobby “barely addressed” the accommodation in their briefing and that the majority “is content to decide this case (and this case only) on the ground that HHS could make an accommodation never suggested in the parties’ presentations.” According to Ginsburg, “RFRA cannot sensibly be read to ‘requir[e] the government to … refute each and every conceivable regulation,” especially where the alternative on which the Court seizes was not pressed by any challenger.” (Citation omitted.)

But it’s the government that had the burden of demonstrating that the HHS mandate was the least restrictive alternative. Far from asking the government to “refute each and every conceivable” alternative, Alito relied on the government’s own accommodation to find that the government had failed to meet its burden. (Ginsburg also shifts in a few sentences from acknowledging that Hobby Lobby did raise the accommodation—as her backhanded “barely addressed” concedes—to claiming, falsely, that it was “never suggested in the parties’ presentations.”)


The Secular Jewish Cabal?


In a Volokh Conspiracy post titled “The Supreme Court’s secular Jewish cabal’s war on religious freedom?,” law professor David Bernstein nails it:

“It’s no coincidence that three of the four dissenters in Hobby Lobby were Jews with limited attachment to their religious heritage. Such Jews have always been uncomfortable with public displays of religion in the United States, and are especially hostile to the sorts of evangelical Christianity that motivates the owners of Hobby Lobby to seek religious exemptions from providing their employees with certain types of contraception. It’s also not surprising that three of the dissenting Justices are unmarried women, two of whom have never had children, because they see pregnancy as a disease in need of ‘preventive care’ rather than a blessing.”

That’s really reductionist and offensive, right? Yet my Facebook and Twitter feeds are filled with equally reductionist and offensive blog posts talking about the Catholic male cabal on the Supreme Court….

[W]hile … I don’t think that criticizing someone’s religious views [is] out of bounds or should be dismissed as prejudiced, attacking a fully secular Supreme Court opinion on the grounds that its authors happen to be Catholic should be well-out-of-bounds. So stop it.

My Review of Rise and Decline of American Religious Freedom


The new (August/September) issue of the must-read journal First Things includes my short but very favorable review of Steven D. Smith’s The Rise and Decline of American Religious Freedom:

Anyone who wants to understand the perilous condition of religious freedom in America should read this book. In lucid prose, University of San Diego law professor Steven D. Smith contests basic themes of the conventional story of American religious freedom and presents a provocative and compelling counter-narrative. His account culminates in a bracing discussion of the threat posed by the emergent new orthodoxy of secular egalitarianism.

According to the standard story, the framers adopted the First Amendment as a novel experiment in Church-state separation and religious freedom. That story, Smith explains, is doubly wrong. Rather than breaking cleanly with the past, the core concepts of the traditional American understanding of religious freedom developed as a “recovery, adaptation, and consolidation” of “distinctively Christian notions”: the medieval theory of the dual jurisdictions of Church and state, and the Reformation idea of individual conscience as an “inner church.” Further, in the framers’ understanding, the religion clauses of the First Amendment were primarily jurisdictional, not substantive: they made clear that matters of religion remained within the domain of the states. Smith sketches the long and bizarrely convoluted history by which the religion clauses came to be understood as setting forth substantive rights, first against the federal government, and later (under the incorporation doctrine ultimately applied to the Fourteenth Amendment) against the states.

Smith also powerfully argues that the usual narrative, in which the post-World War II and Warren-era Supreme Court rescued the nation from a shameful history of religious persecution and discrimination, has things essentially backwards. He celebrates the “practical genius” of the theoretically inelegant “American settlement,” which recognized specific commitments to separation of Church from state and to freedom of conscience and which saw fit not to resolve the competition between the broader “providentialist” and “secularist” interpretations of those commitments. (Under the providentialist reading, government can acknowledge a dependence on the Creator, and citizens and legislators may act on their religiously informed moral views in making public policy.) When the Supreme Court shattered this settlement by adopting the secularist interpretation, it engendered a destructive “discourse of accusation, anathematization, and abuse,” a discourse that has spread to judicial interventions on related issues like abortion and marriage.

Contrary to common fear-mongering about the supposed theocratic threat from the religious right, Smith cogently sets forth what he sees as the real dangers. First, religious freedom is eroded from within by the “self-subverting logic” of the secularist interpretation: If government can’t act on the basis of any religious views, then it can’t generate the rationales that historically justified religious liberty. Second, secular egalitarianism, especially as reshaped and bolstered by the gay rights movement, is fundamentally incompatible with a robust understanding of religious freedom. Indeed, it has all the markings of an oppressive orthodoxy—a single ultimate value, inordinate certitude of its righteousness, and a desire to “penetrate into hearts and minds” to purify beliefs and motives.

Megan McArdle on Hobby Lobby


In an insightful essay, Megan McArdle explores how the secular left, in complaining that Hobby Lobby is supposedly imposing its religious views on its employees, could confuse itself into thinking that “not buying you something [is] equivalent to ‘imposing’ on you.”

One part of the answer, according to McArdle, is that the secular left holds a diminished view of religion, seeing it “as something more like a hobby.” But the larger part of McArdle’s answer is that there has been a “shift in the way [many people] view rights and the role of the government in public life.” We have a “clash of principles designed for a world of negative rights, in a society that has come to embrace substantial positive rights — as well as a clash between old and new concepts of what is private and what is public.” (Emphasis added.) We used to understand that “there was a large public space … that was nonetheless seen as private in the sense of being mostly outside of government control.” But under the Left’s “totalizing view of government,” “this massive public territory is all the legitimate province of the state.” In short, the secular left’s worldview is deeply opposed to the classical liberal—the classical American—understanding.

While I’m at it, let me also highlight, from last week, McArdle’s excellent “Answers to All Your Hobby Lobby Questions.” A couple of excerpts:

9) Why is it any of my employer’s business what birth control I use?

It’s not, but once you make them pay for it, you make them a party to the transaction. You can’t, on the one hand, mandate that someone pay for something, and on the other argue that it is a matter of supreme indifference to them….

12) What if my employer says it has a sincere religious belief in human sacrifice — can he kill me?

Yes. If your employer has a deeply held religious belief in human sacrifice, they can strap you in a cage, reach into your chest with their bare hands to pull out your still-beating heart, then drop the cage into a fiery pit. It’s a tough break, but from time to time, the Tree of Liberty must be watered with the blood of patriots. Sorry about that.



Is the HHS Mandate “Accommodation” Collapsing?


In the Hobby Lobby case, the Obama administration bore the burden under the Religious Freedom Restoration Act of showing that the HHS mandate was the least restrictive means of furthering a compelling governmental interest. The Hobby Lobby majority properly found it easy to conclude that the Obama administration hadn’t made its showing, as the Obama administration’s robust account of the supposed virtues of the “accommodation” that it has extended to religious nonprofits made it impossible for it to explain why it couldn’t extend that same arrangement to Hobby Lobby and other for-profit objectors.

It now seems that the Obama administration may have hoisted itself on its own petard of deceptions. As this article two days after the Hobby Lobby ruling discusses, the third-party administrators who have been tasked with administering the accommodation say that—surprise!—it “hasn’t worked in the real world” and, rather than being cost-neutral, has “left them stuck with the bill” for “potentially … millions of dollars … with no certainty they’ll ever be paid back.”

The immediate victims of the unworkability are the third-party administrators. But, as the article states, these administrators “may ultimately choose to drop clients with religious objections” to the accommodation. And they have every reason to oppose the extension of the accommodation to for-profit objectors. So the accommodation may be on the verge of collapse.

That the accommodation may be proving to be unworkable, I emphasize, is in no way an indictment of the Hobby Lobby majority’s reliance on it. Again, it was the Obama administration that had the burden to show the HHS mandate was the least restrictive means of furthering its interest, and the Obama administration’s representations—or misrepresentations—about the accommodation meant that it failed to meet that burden.

This Day in Liberal Judicial Activism—July 6


1989—In solo dissent in Hamblen v. Dugger, Florida justice Rosemary Barkett opines that a capital defendant is not permitted to waive his right to present evidence of mitigating circumstances. Such waiver, she contends, somehow makes it impossible for the sentencing court to carry out its statutory role of weighing aggravating and mitigating circumstances when deciding whether to impose a death sentence. But our adversary system routinely depends on the parties to choose what evidence to present. When no evidence of mitigating circumstances is offered, it simply follows that the mitigating circumstances carry zero weight. 

2008—Nearly two decades after President Reagan left office, Washington Post columnist David S. Broder evidently still doesn’t understand Reagan or judicial conservatism. Or maybe he’s just trying to pander to Justice Kennedy. Recounting Kennedy’s status as Reagan’s third pick to fill the seat of Justice Lewis Powell, Broder claims that the pick “turned out to be successful beyond Reagan’s wildest dreams” and that Kennedy has “fulfill[ed] the expectations that Reagan and others had for him from the start.” Yeah, right.

Clueless on Wheaton College Order


On Slate, Dahlia Lithwick and law professor Sonja West purport to explain the Court’s four-paragraph order granting Wheaton College an injunction, pending appeal, against the so-called HHS mandate “accommodation.”

To discern how utterly clueless Lithwick and West are, one need go no further than their assertion that the Court “said” that the accommodation was “unconstitutional.” This assertion is doubly wrong. First, as anyone paying attention ought to know, the Hobby Lobby ruling rests on the Religious Freedom Restoration Act, not on any provision of the Constitution, and there is nothing in the Court’s Wheaton order to suggest that the Court is relying on the Constitution. Second, the Court didn’t “say” that the accommodation is illegal. On the contrary, it explicitly states that its order “should not be construed as an expression of the Court’s views on the merits.”

Lithwick and West mindlessly embrace the contradictions that inhere in Justice Sotomayor’s Wheaton dissent. I’ll note just two further points here.

Like Ruth Marcus, Lithwick and West assert that the three dissenters “share a highly relevant personal characteristic: a uterus.” Unless they mean to contend that the dissenters are, literally, hysterical (or, as Marcus suggests, thinking with their uteruses), I don’t see how that characteristic is relevant to their legal reasoning.

Lithwick and West also wrongly contend that the Hobby Lobby majority concluded that the accommodation “was the narrowest way to achieve the government’s goals.” But the Hobby Lobby majority merely used the accommodation to show that the HHS mandate was not the narrowest way to achieve the government’s goals (or, more precisely, that the government had failed to make its necessary showing under RFRA that the HHS mandate was the least restrictive means). Nothing in that use suggests that the accommodation is itself the narrowest way, and, indeed, the majority observed that the government failed to show that direct governmental payment for the objected-to drugs and devices “is not a viable alternative.”

Yesterday’s Wheaton College Order


Yesterday, the Supreme Court granted Wheaton College an injunction, pending appeal, against the so-called HHS mandate “accommodation.” Justices Ginsburg, Sotomayor, and Kagan dissented from the Court’s order. Justice Breyer evidently joined with the members of the Hobby Lobby majority in providing the relief. (If he had been unavailable, his nonparticipation would presumably have been noted.)

As the brief per curiam order makes clear, on the Obama administration’s account of the law, nothing in the Court’s order “affects the ability of [Wheaton’s] employees and students to obtain, without cost, the full range of FDA approved contraceptives.” After all, the government “contends that [Wheaton’s] health insurance issuer and third-party administrator are required by federal law to provide full contraceptive coverage regardless whether [Wheaton] completes EBSA Form 700.” (Form 700 is also sometimes referred to as the self-certification form.) Thus, on the government’s understanding, there is no reason for the government to require Wheaton to use the self-certification form. (The Court makes clear that it is not embracing the government’s understanding: “this order should not be construed as an expression of the Court’s views on the merits.”)

Justice Sotomayor’s dissent, joined by Justice Ginsburg and Kagan, is built on two contradictions:

1. Sotomayor contends that the Court “retreats” from its position in Hobby Lobby in which it “expressly rel[ied] on the availability of the religious-nonprofit accommodation.” But as the Ginsburg dissent in Hobby Lobby (which Sotomayor and Kagan joined) complained about, the Hobby Lobby majority expressly did not decide whether the accommodation satisfies RFRA. All it did was recognize that the accommodation showed that the HHS mandate was not the least restrictive means of advancing the supposed governmental interest.

In short, it is Sotomayor, Ginsburg, and Kagan, in falsely contending that the majority “retreats” from its position in Hobby Lobby, who in fact contradict their position in that case. Contrary to Sotomayor’s rhetoric that the order “evinces disregard for even the newest of this Court’s precedents,” the order is fully compatible with Hobby Lobby. (Never mind the slippery claim that it’s the “newest” precedents rather than the oldest that most command respect.)

2. Like the government, Sotomayor prominently contends that “the provision of contraceptive coverage is triggered not by [Wheaton’s] completion of the self-certification form, but by federal law.” But she contradicts herself in text that she buries in two footnotes. In footnote 5, she calls the notice on the back of the self-certification form “merely [!] an instruction to third-party administrators.” By her sentence construction, she avoids acknowledging that the form would require Wheaton to make that instruction. And in footnote 6, she states that “Wheaton’s third-party administrator bears the legal obligation to provide contraceptive coverage only upon receipt of a valid self-certification.” (Emphasis added.)

This Day in Liberal Judicial Activism—July 4


1776—The Declaration of Independence is a stirring statement of America’s creed, but is it also a sexist and xenophobic document?

Defending the Supreme Court’s increasing use of foreign law in support of its rulings on the meaning of the Constitution, Justice Ruth Bader Ginsburg titles a 2005 speech “‘A decent Respect to the Opinions of [Human]kind’: the Value of a Comparative Perspective in Constitutional Adjudication.” Obtusely appealing to the Declaration of Independence to justify the Supreme Court’s dependence on foreign law, Ginsburg cannot resist the urge to purge the gender bias she perceives in the Framers’ observation that “a decent Respect to the Opinions of Mankind” requires a declaration of the “causes which impel them to the Separation.” Nor, apparently, does she notice that one of those stated causes was that King George III “has combined with others to subject us to a Jurisdiction foreign to our Constitution.” (See here for more on Ginsburg’s embarrassingly shoddy speech.)  

2010—Days after Supreme Court nominee Elena Kagan can’t bring herself to express her personal agreement with the “self-evident” truth set forth in the Declaration of Independence that all human beings “are endowed by their Creator with certain unalienable Rights,” the same Senate Democrats who ardently push for her confirmation head outside the Beltway to profess homage to the Declaration in Fourth of July celebrations with their constituents.

Victory for Hobby Lobby is Good News for Catholic Bishops


In a confused essay in the National Catholic Reporter, Fr. Thomas Reese contends that the Hobby Lobby ruling is a “mixed blessing” for Catholic bishops. Fr. Reese claims, in particular, that “the decision’s discussion of the accommodation granted to religious corporations will make it very difficult for the bishops to win their case against it.”

One has to wonder whether Fr. Reese somehow imagines that the Catholic bishops would have been better off if Hobby Lobby had lost.

Notre Dame law professor Carter Snead explains on SCOTUSblog how a “careful reading” of the passages that Fr. Reese cites in fact “offers a great deal of hope” to nonprofit religious institutions challenging the accommodation. I provided my own similar assessment here. Without repeating all that Professor Snead and I have said, let me address the defects in Fr. Reese’s assessment.

1. Fr. Reese ignores, for starters, that the Court’s ruling on the question whether the HHS mandate imposes a substantial burden is an important victory for nonprofit Catholic institutions challenging the accommodation. Had the Court instead adopted the bizarre reasoning of Justice Ginsburg’s dissent—in which a massive fine isn’t a substantial burden because the connection between the religious objections and the use of the objected-to drugs and devices is “too attenuated”—the challenges to the accommodation would also fail.

Fr. Reese claims that the bishops objected to the accommodation because “they felt that participating in the process, even by just filling out a form saying they objected to the mandate, would violate their consciences.” His claim badly misses the authorizing role that the self-certification form plays. But, even if his claim were right, the Court’s ruling on substantial burden means that the accommodation does substantially burden those who sincerely believe that “just filling out a form … would violate their consciences.”

2. Fr. Reese misunderstands the role that the accommodation played in the Court’s reasoning. As Professor Snead and I explain, the existence of the accommodation shows that the mandate is not the least restrictive means of advancing a compelling governmental interest. Far from saying that the accommodation “is wonderful,” the majority expressly refrains from addressing whether the accommodation would satisfy RFRA.

Fr. Reese is also wrong in asserting that the Court “accepted the HHS argument that, since it is cheaper for insurance companies to pay for contraceptives than for births, [under the accommodation] there would be no cost to pass on to the corporation.” The Court recited HHS’s position on that point in order to show that the Obama administration was estopped from disputing that the accommodation fully serves its stated interests.

As it happens, a recent report from the real world indicates that the accommodation isn’t working out at all as HHS claimed it would—and that the Hobby Lobby ruling might render the accommodation even more dysfunctional.  

3. In that same real world, judicial results have already occurred that are difficult to reconcile with Fr. Reese’s pessimistic take. In the immediate aftermath of the Court’s ruling, two federal courts of appeals granted religious nonprofits the same relief that the Court had granted to the Little Sisters of the Poor, and a judge on one of those courts delivered a powerful opinion against the accommodation. On the evening of the ruling, the Court itself temporarily barred enforcement of the accommodation against Wheaton College.

4. Fr. Reese mistakenly states that the majority “granted that the government had a compelling interest in providing contraceptives to women.” Instead, the majority merely assumed arguendo the existence of a compelling interest.

As I discuss in point 4 here, the Seventh, Tenth, and D.C. Circuits have already ruled that the HHS mandate does not serve a compelling governmental interest. Because nothing in Hobby Lobby overrides circuit precedent on that issue, challengers to the accommodation should prevail in those circuits. And challengers in other circuits can prevail either by showing that the accommodation doesn’t serve a compelling governmental interest or by showing (as Matt Franck outlines) that the accommodation itself isn’t the means that is least restrictive of the religious liberty of objectors.

* * *

Bottom line: The American bishops and others challenging the accommodation are indisputably better off as a result of the Hobby Lobby victory. That doesn’t mean that victory is assured. But this would be a foolish time to abandon the fight.

Not a Jot of Difference


A curious story appears on the front page of today’s New York Times, about the Declaration of Independence.  Danielle Allen, a scholar with whom I’m acquainted who works at the Institute for Advanced Study here in Princeton, has just published a book titled Our Declaration: A Reading of the Declaration of Independence in Defense of Equality.  I haven’t seen Prof. Allen’s book yet, but the story in the Times concerns something else: whether our usual copies of the Declaration of Independence contain a typo—an erroneously placed period, to be exact—and whether its presence or absence makes a difference.

I am as interested in precise historical accuracy as the next person—maybe more than most—so this story really caught my eye, and made me check the many copies of the Declaration I have ready to hand, in print or otherwise.  Prof. Allen has raised a question about this, the most famous passage in the Declaration:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.—That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.

The portion I’ve underlined is what concerns her.  Does that period after “Happiness” belong there?  What you see above is what the National Archives publish as their transcription of the handwritten parchment copy on display in Washington.  But Professor Allen is convinced that the period is (in the Times reporter’s words) an “errant spot of ink.”

I have seen the Declaration published at least three ways, first as seen above with both a period and a dash.  Second, with a period and no dash:

. . . and the Pursuit of Happiness.  That to secure these Rights . . .

Third, with a dash and no period:

. . . and the Pursuit of Happiness—That to secure these Rights . . .

That is how the Bicentennial Commission, chaired in the 1980s by then-Chief Justice Warren Burger, printed the Declaration when it was published together with the Constitution in a pocket-sized pamphlet.  Prof. Allen would like to see it printed this way everywhere, and frankly I like it that way too.

But now the story goes a bit sideways.  Why is Prof. Allen so intent on getting this precisely right?  Is she just a punctilious punctuator?  No:

The period creates the impression that the list of self-evident truths ends with the right to “life, liberty and the pursuit of happiness,” she says. But as intended by Thomas Jefferson, she argues, what comes next is just as important: the essential role of governments—“instituted among men, deriving their just powers from the consent of the governed”—in securing those rights.

“The logic of the sentence moves from the value of individual rights to the importance of government as a tool for protecting those rights,” Ms. Allen said. “You lose that connection when the period gets added.”

This is evidently what brought the matter front-page attention in the TimesBut it makes no difference, so far as the meaning of the Declaration is concerned.  In other places, including collections of Jefferson’s writings based on careful scholarship, I have seen this passage punctuated with a semicolon (which is how I’d have done it if I’d been the editor in 1776), and even with a colon.  Any of them—period, dash, both together (a peculiar construction but not uncommon in the eighteenth century), colon, semicolon, or even comma—could have been used without having the slightest impact on the meaning.

For the fact is that, with the phrase “Pursuit of Happiness” (they were capital capitalizers in those days too—I suspect German influence), the list of “unalienable rights” has indeed come to an end.  The next thought—whether in a new phrase, clause, or sentence—begins “That to secure these Rights,” and that is a distinct shift from end to means.  The rights belong to every human being simply by virtue of our having been created equal and endowed with them by our Creator.  Giving them practical realization will take the creation of a government, possessing just powers to which we consent.  First end, then means.  To quote Hillary Clinton, “What difference at this point does it make” whether the Continental Congress gave us a period, a dash, or both?  One doesn’t “lose” a “connection,” one makes a particular kind of connection, and the punctuation has no substantive effect.

Prof. Allen’s interest in this rather trivial question is seconded by others:

Correcting the punctuation, if indeed it is wrong, is unlikely to quell the never-ending debates about the deeper meaning of the Declaration of Independence. But scholars who have reviewed Ms. Allen’s research say she has raised a serious question.

“Are the parts about the importance of government part of one cumulative argument, or — as Americans have tended to read the document — subordinate to ‘life, liberty and the pursuit of happiness’?” said Jack Rakove, a historian at Stanford and a member of the National Archives’ Founding Fathers Advisory Committee. “You could make the argument without the punctuation, but clarifying it would help.”

No, Prof. Rakove, it’s no help at all.  The relation is of ends to means, and the latter are always “subordinate” to the former.  How we punctuate the thought makes not the slightest difference in clarifying anything.  People first, government after.  That is the logic of the Declaration, punctuate it as you will, and there is no way to change that priority.  If the objective is to place the government’s power on the same plane as the people’s unalienable rights, erasing a period isn’t going to help.

Breakfast with E.J. Dionne—Part 2


Some more observations (numbered serially from Part 1) on E.J. Dionne’s dog’s breakfast of commentary:

3. Dionne finds it “strange” that the Hobby Lobby majority “barely nodded at settling the factual question of whether birth control methods such as an IUD are abortion-inducing.” If Dionne were paying attention, he might have noticed that Justice Ginsburg, in her dissent, doesn’t even mention the issue. That might have led him to ponder why.

What is really strange is Dionne’s imagining that this was an issue for the Court to address.

Let me begin with what is, in the end, a side point: As I’ve explained before, the Obama administration approvingly cited the FDA’s Birth Control Guide for the propositions that an IUD “may prevent the [fertilized] egg from attaching (implanting) in the womb (uterus)”; that Plan B “may also work … by preventing attachment (implantation) to the womb (uterus)”; and that ella “may also work by changing the lining of the womb (uterus) that may prevent attachment (implantation).” Further, as I put it in my summary of a careful reading of the amicus brief submitted by ACOG and others (“PRH brief”):

[T]he PRH establishes that the Hobby Lobby plaintiffs are right to believe that copper IUDs can operate to prevent implantation (and thus to kill the developing human embryo). The PRH brief also reveals, if backhandedly, that the state of the science on whether Plan B and ella can also operate to prevent implantation is not definitively settled—and thus, given their objections to facilitating the destruction of human embryos, amply justifies the Hobby Lobby plaintiffs in resolving the scientific uncertainty against providing coverage of Plan B and ella (in addition to copper IUDs).

But the fact that the concerns of the Hobby Lobby plaintiffs are scientifically well grounded is, in the end, no business of the Court’s (as all nine justices recognize). To illustrate the point: Let’s say that science established that pork is no less pure than beef. Would that scientific finding mean that the owner of a kosher deli would not have a religious-liberty claim against being compelled to serve pork? Ludicrous.

(Courts can, I’ll note, satisfy themselves that the asserted religious conviction is sincerely held.)

4. Dionne perceives “a small victory for socialized medicine” in Justice Alito’s supposed declaration that the “best way” for the government to avoid burdening religious liberty would be for the government itself to provide the objected-to drugs and devices to any women who are unable to get them from their employers. What Alito actually said was merely that that would be the “most straightforward way.”

In any event, there shouldn’t be anything surprising about the proposition that an approach that doesn’t dragoon objecting employers doesn’t violate their religious-liberty rights. That proposition no more favors “socialized medicine” than it favors market-oriented approaches that don’t dictate to employers (or to other group providers of health-insurance coverage) the coverage they must provide.

5. Dionne finds “[o]ne bit of good news” in the “friendly remarks” that the majority makes about the so-called accommodation that has been offered to religious nonprofits. As I explain here, I think that he and others misread what the majority says.

6. Dionne endorses Justice Ginsburg’s claim that (in his paraphrase) the justices in the majority “want corporations to have it both ways”—“us[ing] the corporate form to escape ‘personal responsibility for the entity’s obligations’ … but then exercis[ing] the rights of individuals when doing so is convenient.”

Dionne fails to inform his readers that only Justice Sotomayor joined that part of Ginsburg’s opinion holding that for-profit corporations have no religious-liberty rights under RFRA. He gives no hint of Alito’s compelling statutory argument that corporations do have rights under RFRA. And he fails to acknowledge, much less contemplate, the extraordinary consequences of Ginsburg’s position.

7. Dionne closes with the exhortation that “Liberals should embrace religious liberty as their own cause.” If he meant that all Americans should embrace religious liberty as our cause, I would agree with him. But his petty and tendentious claim that religious liberty “should not be put to the service of reaction”—as though protecting people from being compelled to facilitate the killing of early human embryos is in “the service of reaction”—seems to indicate that Dionne approves of religious liberty only when it is in the service of his political agenda.

Breakfast with E.J. Dionne—Part 1


In his column today on the Supreme Court’s decisions in Hobby Lobby and Harris v. Quinn, E.J. Dionne Jr. serves up his usual dog’s breakfast of commentary. What an unsightly mess it is. An unappetizing sampler:

1. Dionne’s overarching theme is that the two decisions reflect the “profound class bias of the court’s majority.” Oh, really?

a. Dionne contends that the Hobby Lobby majority “fashioned” a “synthesis” of “social and corporate conservatives.”

Dionne somehow seems to have missed what another lefty commentator, David Gans of the Constitutional Accountability Center highlighted months ago (in a very strange essay): the “near-total silence” of “corporate America” on the Hobby Lobby dispute. As Gans pointed out, despite  the “mountain of amicus briefs,”

Not one Fortune 500 company filed a brief in the case. Apart from a few isolated briefs from companies just like Hobby Lobby and Conestoga Wood, the U.S. business community offered no support for the claim that secular, for-profit corporations are persons that can exercise religion.

Perhaps most significant, the U.S. Chamber of Commerce—by far the most powerful and successful voice on behalf of corporations before the Supreme Court—remained on the sidelines in the case as well.

The fact of the matter is that the closely held corporations that might plausibly be expected to assert religious-liberty rights are family-run businesses. The families that own and operate them are drawn from a broad cross-section of social classes and have much less in common with our corporate elites than Dionne does.  

b. On Harris v. Quinn, Dionne contends that the Court “undercut the ability of low-paid workers to organize themselves for higher wages and benefits.” As it happens, the victorious plaintiff in that case, the primary caregiver for her disabled adult son, objected to the scheme in which the federal Medicaid funds intended to support his care were instead being diverted to public-sector union coffers by the fee that she was being coerced to pay. As Charles Lane explains (in his much more insightful Washington Post column), what this scheme really involved was a way for the “Democrats who run Illinois” to continue to win public-sector union “support at election time.” So much for Dionne’s class warfare.

2. Dionne complains that the Hobby Lobby majority “focused on the liberties of the company’s owners, not of those who work for them.” His complaint is trivial in one respect and untrue in another.

The plaintiffs in the cases were the closely held companies and their owners. They presented their claims that the HHS mandate violated their religious-liberty rights. So it’s no surprise that, in deciding those claims, the Court focused on those claims. What else was it supposed to do?

What Dionne obscures, though, is that (as the Religious Freedom Restoration Act contemplates) an essential part of the majority’s analysis was that the government had available to it alternative means, less restrictive of the plaintiffs’ religious liberty, that would equally serve the (assumed) governmental interest in ensuring that “those who work for them” have access to all FDA-approved contraceptives without cost-sharing. In other words, rather than engage in its own freestyle balancing of competing interests, the majority reconciled those interests in exactly the way that RFRA calls for.

More to come.

Who’s Being Partisan?


ThinkProgress’s Ian Millhiser has a tiresomely tendentious essay lambasting Justice Alito as “The Most Partisan Justice.” Millhiser draws a sensible distinction between someone whose “decisions are driven by a fairly coherent judicial philosophy” (though he attaches the pejorative label “ideologue” to Justice Thomas in crediting him with this approach) and someone who simply reaches partisan results. But rather than try to give an example or two (beyond his wildly mistaken account of Hobby Lobby) of instances in which Alito has supposedly been unfaithful to his judicial philosophy in order to reach partisan results, Millhiser resorts to statistical flim-flam.

For Millhiser, Justice Ginsburg can’t be labeled a partisan because on one occasion in her 22 years on the Court, she “broke with her fellow liberals in a case brought by unions seeking to make it easier for them to collect funds.” Never mind that virtually no one has ever heard of the case, that her vote was unnecessary for the outcome, and that she concurred only in part and in the judgment.

By contrast, Millhiser won’t count to Alito’s credit the “handful of cases where Alito joined a 5 justice majority [sic] that included one other conservative and three liberals.” What Millhiser’s confusing phrasing (“joined a 5 justice majority”) seems designed to obscure is that Alito provided the decisive fifth vote in those cases. Further, in the one case that I quickly found that evidently is supposed to fit Millhiser’s description, the so-called “other conservative” was Justice Kennedy (who is no conservative).

For a vastly more intelligent account of Justice Alito’s decisionmaking—one that emphasizes how distinctive his judicial approach is from that of the “three other conservative justices with whom he is generally lumped​” and how that approach has led him to stand apart from them in major First Amendment cases—see Adam White’s 2011 Weekly Standard essay, “The Burkean Justice.”

Thinking With Their Uteruses?—Part 2


Some additional observations (numbered serially from my Part 1 post) on Ruth Marcus’s claim that the fact that Justices Ginsburg, Sotomayor, and Kagan “have uteruses” helps to explain their dissents in Hobby Lobby:

3. Outside Marcus’s narrow world, there are, of course, countless women who believe that Hobby Lobby’s religious-liberty claim ought to prevail. Those women include Seventh Circuit judge Diane Sykes and D.C. Circuit judge Janice Rogers Brown (each of whom wrote opinions holding that the HHS mandate violates the RFRA rights of for-profit companies and/or their owners); the many talented lawyers who supported the challenge to the HHS mandate; and individual plaintiffs like Elizabeth Hahn and Barbara Green.

The ugly implication of Marcus’s suggestion that having a uterus should lead someone to oppose Hobby Lobby’s position is that these women aren’t really women, or are somehow less female than Ginsburg is, or are traitors to the Sisterhood.

In contrast to the fictitious “war on women” of the Left’s imagination, there seems to me something genuinely hostile in the insinuation that all women should think alike on any question that involves birth control.

4. Marcus argues more broadly that the “phenomenon of life experience influencing outcome … is embedded in the act of judging.” Well, yes and no. This is a large topic that I won’t try to explore fully here. I’ll instead set forth these propositions:

(a) As a general rule, the obligation of impartiality requires that a judge strive to ensure that his or her life experience isn’t improperly influencing how the judge construes or applies the law.

(b) There will nonetheless be some (perhaps many) legal questions in which the judge’s life experience inevitably influences the act of judging.

(c) Among the many defects of the “living Constitution” approach to constitutional interpretation are that it invites judges to indulge their life experiences and that it vastly multiplies the instances in which it is supposedly proper or inevitable for them to do so.

Thinking With Their Uteruses?—Part 1


The offensive charge in the title of this post is how the Washington Post’s Ruth Marcus explains the votes of Justices Ginsburg, Sotomayor and Kagan against the religious-liberty claims made by Hobby Lobby and its owners:

How did the Supreme Court manage to agree unanimously that police must obtain a warrant before searching cellphones yet split on whether employers must offer contraception as part of their health-care plans?

My explanation, slightly crude but perhaps compelling: All the justices, presumably, have cellphones. Only three have uteruses, and you know which way they voted.

Of course, a uterus is not a prerequisite for understanding the importance of access to birth control….

But let’s be clear: It helps.

At the risk of engaging in what Marcus might condemn as male logic, let’s consider her explanation:

1. The legal issues that divided the Hobby Lobby majority and the dissent do not properly turn in any way on competing understandings of the “importance of access to birth control.”

The first issue is whether for-profit corporations have religious-liberty protections under the federal Religious Freedom Restoration Act. Ginsburg’s extraordinary (and poorly reasoned) position means that an incorporated kosher deli could be required to serve non-kosher food. Judgments about the “importance of access to birth control” are no more relevant to this issue than judgments about the importance of access to non-kosher food are. (Kagan, along with Breyer, did not join Ginsburg’s dissent on this issue, so Marcus would presumably concede that her uterus explanation doesn’t apply here.)

The second issue is whether the massive fines that Hobby Lobby faced substantially burdened its exercise of religion. Ginsburg’s implausible escape from the obvious “yes” answer turns on her confused conclusion that “the connection between the families’ religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial.” By her account, Ginsburg is relying on a general principle that a necessary “linkage” has been “interrupted by independent decisionmakers.” Alito powerfully explains why Ginsburg’s principle is wrong (the courts have no business deciding what religious beliefs about moral complicity are permissible) and contrary to precedent. (Pp. 35-38.) In any event, whether you agree with Alito or Ginsburg, their arguments do not implicate in any way competing assessments of the “importance of access to birth control.” 

The final issue on which the majority and the dissent divide is whether the HHS mandate is the least restrictive means of advancing a compelling governmental interest. On this least-restrictive-means inquiry, the majority determines that the government “has not shown that it lacks other means of achieving its desired goal” that are less restrictive of religious liberty. Among other things, it concludes that the accommodation alternative that has been offered to religious nonprofits would have “precisely zero” negative effect on the government’s desired goal. To be sure, Ginsburg disagrees with the majority, but her points of disagreement with it (e.g., “where is the stopping point to the ‘let the government pay’ alternative?”) again invoke supposedly general principles.

The one issue that might well invite competing assessments of the “importance of access to birth control” is whether the HHS mandate serves a compelling governmental interest. But the majority finds it “unnecessary to adjudicate this issue,” and assumes arguendo that a compelling governmental interest exists, as the government’s failure to satisfy the least-restrictive-means prong of RFRA means that the HHS mandate flunks RFRA.

2. Thus, if Marcus believes that Ginsburg, Sotomayor, and Kagan were in fact voting based on their “understanding of the importance of access to birth control,” she is in effect contending that their stated legal rationales were cover for reaching the result that they wanted. She may well be right, but that would hardly be something to praise or celebrate.

More in Part 2.

The Struggle That Follows Hobby Lobby


Today at Public Discourse, I have an essay titled “After Hobby Lobby, the Struggle for Religious Freedom Continues.”  Here’s a sample:

The structure of the Court’s logic compels the conclusion that, for purposes of religious freedom, all the objecting employers are identically situated. Churches, houses of worship, and religious orders (now exempted), para-church institutions such as Notre Dame and EWTN (now “accommodated” but still, in their own view, morally complicit in evil), and private for-profit employers (coerced until two days ago and now in limbo for a time) can all equally claim religious freedom from the unjust coercion of the government. As artificial persons in the law—organized to serve and secure the interests of the natural persons they represent—they are in principle indistinguishable in their ability to claim the same sincere religious objection to the HHS mandate.

The government’s effort to distinguish these categories of employers amounts, in short, to a row of dominoes, all falling together by the logic of religious freedom enunciated by the Court in Hobby Lobby

You can read the whole thing here.


More on the Accommodation Alternative


In the wake of yesterday’s Hobby Lobby ruling, there is, not surprisingly, quite a lot of speculation whether the so-called HHS mandate “accommodation” satisfies RFRA. With apologies for heading into the weeds, I offer some tentative observations on this matter:

1. On SCOTUSblog, Lyle Denniston states that it is “rather difficult” to read passages from Justice Alito’s majority opinion and Justice Kennedy’s concurrence “as anything other than a declaration” that the accommodation is “good enough.”

I disagree. Alito says explicitly, “We do not decide today whether an approach of this type [i.e., the accommodation] complies with RFRA for purposes of all religious claims.” He states only that the accommodation “does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.” As he puts it in a footnote, “The less restrictive approach we describe accommodates the religious beliefs asserted in these cases, and that is the only question we are permitted to address.” (Emphases added.)

In short, Alito clearly doesn’t reach the question whether the religious nonprofits currently subject to the accommodation may successfully challenge it under RFRA on the ground that facilitating insurance coverage by a third party (of morally objectionable drugs and devices) violates their religious beliefs. 

Kennedy’s language, I will acknowledge, is murkier. Denniston focuses on a passage in which Kennedy, in discussing the accommodation, states that “RFRA requires the Government to use this less restrictive means.” But, in context, this seems like just an imprecise way of stating that the government loses in Hobby Lobby because a less restrictive means is available (whether or not that less restrictive means would itself satisfy RFRA). Further, given that no one briefed or argued in Hobby Lobby whether the accommodation would satisfy RFRA and given the serious legal questions about how the accommodation would actually work, I think that it would be extraordinary to read into Kennedy’s brief remarks any judgment that the accommodation is fine. (Denniston,  I should note, nicely highlights some of the questions about how the accommodation would work and concludes that challengers to the accommodation “would have quite a strong argument” that the issue “actually remains unresolved.”)

2. As Denniston reports, yesterday evening the Supreme Court, over the recorded dissents of Justice Breyer and Justice Sotomayor, temporarily barred enforcement of the accommodation against Wheaton College, a religious nonprofit. If the justices in the Hobby Lobby majority had concluded that the accommodation satisfies RFRA, they would have had no reason to grant this temporary relief. Note also that the justices, in footnote 9 of the Hobby Lobby opinion, describe the relief from the accommodation that they previously provided the Little Sisters of the Poor in a way that is reasonably read, and has evidently already been read, to support extending that relief to other religious nonprofits who are challenging the accommodation.

To be sure, it’s possible that the justices in the majority have formed the tentative judgment that the accommodation is okay if the objecting employer isn’t required to complete the self-certification form that doubles as an authorization to its third-party administrator. But, as Denniston points out, government lawyers have argued that, without the employer’s authorization, the third-party administrator won’t have the legal authority to provide the objected-to coverage.

3. I emphasize again that the fact that the Court recognized the accommodation as a less restrictive means in no way implies that the Court must think that the accommodation itself would satisfy RFRA. Indeed, just three days before the Court’s ruling in Hobby Lobby, the Chief Justice illustrated the principle in a closely analogous context. As I discuss in point 3 of this post on the ruling on the buffer-zone law, the Chief Justice, in the course of discussing whether the law was narrowly tailored, “identif[ies] a number of less-restrictive alternatives that the Massachusetts Legislature might have adopted” while making clear that he is not endorsing the constitutionality of any of those alternatives.

Under RFRA, the government has the duty to show that a burden on a person’s exercise of religion is the least restrictive means of furthering a compelling governmental interest. When the Court identifies a less restrictive means than the one the government has adopted, that suffices to show that the government hasn’t met its duty.

4. On the Corner, Matt Bowman, who has been litigating lots of challenges to the HHS mandate (including the accommodation), reminds us that the Seventh, Tenth, and D.C. Circuits have already ruled that the HHS mandate does not serve a compelling governmental interest. As Bowman points out, nothing in Hobby Lobby overrides circuit precedent on that issue. Given the clarity that Hobby Lobby provides on the threshold question of substantial burden, it ought to be easy for challengers to the accommodation to get past that threshold. Once they do so, those in the Seventh, Tenth, and D.C. Circuits will prevail on lack of a compelling governmental interest.

Tags: Hobby Lobby

This Day in Liberal Judicial Activism—July 1


1987—Upon President Reagan’s announcement of his decision to nominate D.C. Circuit judge Robert H. Bork to the Supreme Court, Senator Edward Kennedy races to the Senate floor to launch a viciously false attack on Bork:

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens….

The campaign of calumny that Kennedy initiates will lead several months later to the defeat of Bork’s nomination.

2002—Federal district judge Jed S. Rakoff rules (in United States v. Quinones) that the federal death penalty is unconstitutional. In October 2002, a unanimous Second Circuit panel, in an opinion by Judge José A. Cabranes (a Clinton appointee), will reverse Rakoff’s ruling. 


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