Conspicuously absent from yesterday’s post-Hobby Lobby hullabaloo was the acknowledgment on the left that the decision was the product of a court. Distilling into a single line what was a popular and widely disseminated critique, the New York Times’s Nick Kristof tweeted a picture of Justices Kennedy, Roberts, Scalia, Thomas, and Alito, sardonically labeling the quintet as “The experts on women’s health on the Supreme Court who ruled today against contraception coverage.” A few hours later, Senator Harry Reid’s office pushed out an assessment that was cut from the same unlovely cloth. “It’s time that five men on the Supreme Court stop deciding what happens to women,” Reid tweeted. Among the hysterical, that sentiment was ubiquitous.
One cannot help but wonder whether Kristof and Reid are aware of what the Supreme Court actually does — which, as anybody who has even a fleeting grasp of American civics knows, is not to set American policy, on health or anything else, but to interpret and uphold the law. In this particular case, the justices were called to judge whether a mandate that was pushed out by the Obama administration in 2012 was in conflict with another law, the Religious Freedom Restoration Act, that was added to the books in 1992. This being so, the degree to which those who decided the case are “experts on women’s health” is wholly immaterial. The justices are jurists not doctors — they are nine appointed attorneys whose role in the American settlement is to provide legal answers to legal questions. Man or woman; straight or gay; handsome or ugly; Jew, Catholic, or protestant — the law must remain the law, regardless of in whose name its intricacies are decided. The alternative would be disastrous. Does Harry Reid aspire to see Roe v. Wade, which was decided by nine men, overturned?
Identity politics notwithstanding, the central implication of the Kristofs and Reids of the world — that the very involvement of the Court in this area is uncouth — is a rather strange one. The only way that such questions will not end up in the courts is if a political accommodation is reached: If Congress moves to reconcile its incompatible laws; if the Obama administration elects not to push the state into hitherto unthinkable areas; or if the Constitution is amended to render moot the question of what governments may require of the religious. In the absence of such action, the courts will inevitably be asked to intervene. Does the pair have a better way of resolving legal disputes? Is Marbury v. Madison to be reconsidered each time the result of a Supreme Court case is not to the liking of the New York Times?
Perhaps so. Kristof’s widely repeated claim that the Court “ruled today against contraception coverage” was not merely grossly hyperbolic, but an utterly extraordinary way of describing the process. The Supreme Court is not a legislature; it is a court. The majority in the Hobby Lobby case didn’t rule “against contraception coverage” or women or atheists or employees; it ruled against the administration. The question at hand was not whether women have a cosmic right to certain forms of contraception, but whether the administration’s actions can pass muster under current law. As Elena Kagan, Obama’s own appointee to the Court, explained at the Aspen Ideas Festival in 2013:
None of us decide cases based on who the parties are. It’s not like the Chamber of Commerce appears and you vote, I like the Chamber of Commerce or I don’t – or a consumer appears in court and you say I think consumers need more protection or they don’t.
Remarkably, this foundational principle appears to be alien to our discontents, for whom outcomes are apparently all that matter. Writing in The Atlantic, Garrett Epps took a leaf out of President Obama’s book, lamenting “the Supreme Court’s cold indifference” toward the parties he favors politically, griping that “the Court feels the pain of everybody but employees,” and accusing Samuel Alito, who authored both opinions yesterday, of being “tender toward anti-union workers and anti-contraception employers” but “flinty toward union members, female employees, and women’s so-called health needs.”
This pose, which rests upon the disgraceful presumption that the role of courts in a constitutional republic is to host pity parties, was apparently the template for disgruntled politicos. In the immediate aftermath, Senator Patty Murray issued a wild and overwrought statement in which she accused the Court of refusing to “protect women’s access to health care,” of taking America “closer to a time in history when women had no choice and no voice” (the mandate was promulgated in 2012), and — showing that she believes that the Court should rule according to the opinion of the transient majority — of ignoring the “vast majority of Americans who understand how important it is for women and families.” At no point did she even come close to mentioning the legal case. Nor, for her part, did Senator Elizabeth Warren. “Can’t believe we live in a world where we’d even consider letting big corps deny women access to basic care based on vague moral objections,” Warren spluttered. Alas, this was par for the course, the reactions being almost exclusively political; the assumption being that the Court had not been called upon to arbitrate a legal dispute but to proclaim a moral judgment.
To acknowledge the Court’s legitimacy and to correctly understand its purpose is, naturally, not to endorse all of its decisions. Like most people, I consider it to have erred in a substantial number of cases — occasionally catastrophically. Nevertheless, I acknowledge that its “mistakes” are typically the result of judicial philosophies that are at odds with my own, and not of the Court’s members allowing their personal animosities towards litigants to inform their adjudications. Setting up our discussions on these terms is a prerequisite to understanding and to civic comity.
This, of course, is precisely why critics have sidestepped the issue. Conflating ends and means, as politicians throughout history have discovered, is a surefire way to confuse the electorate and to create viable enemies on whom losses can be blamed. Watching the wailing and gnashing of teeth that followed the Court’s ruling in Hobby Lobby’s favor, it became quickly clear why this approach holds such appeal. Keenly aware that they cannot confess aloud that they consider the American Constitution to be little more than an irritation, the more excitable champions of the state have of late taken a more subtle form: First, they promise fealty to the charter and to any supporting laws; second, they presume in word and in deed that there is no important difference between the document’s meaning and the current thinking of the ruling classes; and, when they inevitably lose a big case, they seek to discuss anything but the issue at hand.
Yesterday’s decision was of extraordinary import to those few Americans whose most precious beliefs are being prodded at by a Leviathan that does not know when to barge in unannounced, when to politely knock, and when to leave well alone. But of infinitely broader consequence was the casual manner in which the rule of law was relegated to an irrelevance in the widespread reaction to the ruling. Laws that can be held to mean anything will end up meaning nothing; laws that mean nothing are of no use at all. And those who sit indifferently in the middle, hoping to extract quick wins from a system that they abhor, will soon bring the walls tumbling down — not just on their antagonists, but on themselves, too.
— Charles C. W. Cooke is a staff writer at National Review.