Bench Memos

Jeffrey Toobin, Chicken Little

Hmmm. A New Yorker article by Jeffrey Toobin titled “On Hobby Lobby, Ginsburg Was Right.” Gee, what are the chances that the article might have a wee error or two?

Let’s see:

1. Toobin grandiosely opens with a quote from Oliver Wendell Holmes Jr. that he manages to botch in every way possible. He doesn’t even get the quote right: The actual phrase from the Holmes dissent he links to is “exercise a kind of hydraulic pressure” (not “effect”). Further, Holmes didn’t say that “important Supreme Court decisions” exercise that kind of pressure. Rather, he said that “immediate interests” exercise that pressure on decisions.

More fundamentally, the lesson that Toobin attributes to Holmes—that important cases “invariably have a profound influence”—is the opposite of Holmes’s point:

[G]reat cases are called great not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. [Emphasis added.] 

Thus, Holmes is better read as inviting Toobin to reflect whether “some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment” is causing Toobin to exaggerate the importance of Hobby Lobby.

Indeed, whereas Toobin attempts to use the supposed consequences of the Hobby Lobby ruling as evidence that the majority got it wrong, Holmes, at the end of the very paragraph from which Toobin draws his misquoted passage, embraces a robust textualism that rejects Toobin’s approach:

[W]hile at times judges need for their work the training of economists or statesmen, and must act in view of their foresight of consequences, yet when their task is to interpret and apply the words of a statute, their function is merely academic to begin with — to read English intelligently — and a consideration of consequences comes into play, if at all, only when the meaning of the words used is open to reasonable doubt. [Emphasis added.]

2. Toobin’s primary item in support of his claim that Justice Ginsburg “has the better of the argument” on the consequences of Hobby Lobby (not on its reasoning, which he doesn’t address) is, believe it or not, a district-court ruling on a discovery dispute in an administrative subpoena enforcement action. The ruling had nothing to do with the religious-freedom rights of a for-profit corporation, but instead involved whether the leader of a church had to answer “questions posed to him about the internal affairs and organization” of the church.

Toobin thinks it meaningful that the court’s ruling cited Hobby Lobby, but it did so only for uncontroversial propositions:

Toobin complains that the “substantial burden” standard that the court used was “a standard used in Hobby Lobby.” Well, of course it was, as that is the standard set forth in the federal Religious Freedom Restoration Act.

Toobin says that the “judge, also echoing Hobby Lobby, said he needed only to determine that [the leader’s] views were ‘sincere’ in order to uphold his claim.” But everyone in that case agreed, just as everyone in Hobby Lobby agreed, that the question whether a person’s religious belief is eligible for protection under RFRA turns on whether the person sincerely holds that belief. That elementary religious-liberty principle was clearly established more than thirty years ago, in Thomas v. Review Board (1981), if not earlier. Ginsburg never contests it. Toobin is flatly wrong, moreover, to contend that that’s all the judge below “needed … in order to uphold [the leader’s] claim” (as well as to imply that Hobby Lobby would provide any support for such a conclusion). The judge instead applied the RFRA framework.

In short, the district-court ruling is in no discernible sense a consequence of Hobby Lobby, and there is every reason to believe that it would have been written exactly the same way (with different citations for its elementary propositions) if Hobby Lobby had never been decided or if Hobby Lobby had been decided Ginsburg’s way.

3. Toobin also claims that the Court’s Wheaton College order, issued just days after Hobby Lobby, indicates that “the implications of Hobby Lobby were broader than Alito originally let on.” But, as I’ve explained, the Wheaton College order is entirely compatible with Hobby Lobby.  Further, Ginsburg’s primary complaint in Hobby Lobby is against “commercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs.” Wheaton College is a religious nonprofit, so it’s difficult to see how its religious-liberty protections vindicate Ginsburg’s parade of horribles.

4. Evidently because it doesn’t fit his narrative, Toobin neglects the most prominent application of Hobby Lobby so far—the Fifth Circuit’s ruling in McAllen Grace Brethren Church v. Salazar that the Department of the Interior had so far failed to provide sufficient evidence to justify its policy of limiting permits for the possession of eagle feathers to members of federally recognized tribes. Yes, by “reaffirm[ing]” and “clarif[ying]” that the “burden on the government in demonstrating the least restrictive means test is a heavy burden,” Hobby Lobby might well make it more difficult for federal bureaucrats to take eagle feathers away from members of American Indian religions who regard them as sacred.

5. Toobin’s essay includes other surprising errors. For example:

a. Toobin says that “the A.C.A. requires firms with more than fifty employees to provide insurance that includes birth-control coverage, or else pay a fine.” But it was the Obama administration, not Congress, that imposed the HHS mandate. (Ginsburg has made the same gaffe.) Further, the HHS mandate doesn’t apply to employers with “grandfathered plans.”

b. Toobin says, “There was an exemption already for religious institutions.” In fact, the very narrow exemption, which was part of the HHS mandate (rather than something “already” in existence) primarily covers houses of worship. It does not extend to religious institutions generally. That’s why Wheaton College and other religious nonprofits have had to litigate against the so-called “accommodation.”


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