Special Report

The Supreme Court Gets It Mostly Right

One conservative retirement away from tyranny.

By 6.30.14

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A few months ago, I had the opportunity to debate Democratic attorney and activist Chris Hahn on Sean Hannity’s radio show regarding the “Hobby Lobby” case in which that company — a closely-held (although large) private company, founded and run by devout Christians — objected to the Obamacare mandate that companies must provide “free” birth control.

From the “I bet you didn’t know this after watching NBC News” files: Hobby Lobby’s health insurance plans already cover most popular forms of birth control — those used by the vast majority of Americans who use birth control. In fact, Hobby Lobby covers sixteen of the twenty FDA-approved contraceptive methods. The Green family, which owns the chain of arts and crafts supplies stores, says they intend to continue to cover those 16 forms of birth control even after winning the court case. What they object to are IUD’s and “abortifacient” medications that prevent the implantation of an already fertilized egg; they consider it taking a life.

Mr. Hahn raised the usual leftist talking points, including that Hobby Lobby is a company, not a person, and therefore has no religious rights. Of all of his misguided statements, however, none was more objectionable than “Only a few wackos on the right are fighting this.” Hannity would have none of it, and neither would I, telling Mr. Hahn, “I’m a not-very-religious pro-choice Jew and I’m incredibly upset about what the government is trying to do to Hobby Lobby.… It’s not only religious people who care about this. This is a matter of freedom.”

Chris Hahn is not feeling too well today following Monday’s Supreme Court ruling — the last of this term — a 5-4 split decision in Burwell (replacing Kathleen Sebelius as HHS Secretary) v. Hobby Lobby (and another similarly situated firm, Conestoga Wood Specialties). The Court ruled that requiring the companies to pay for birth control methods that their owners object to on religious grounds is a violation of the Religious Freedom Restoration Act of 1993 (“RFRA”) — a law passed, as David Catron points out, by a Democratic Congress and signed by Bill Clinton, hardly a “right-wing wacko.” It was the latest slap-down in a deservedly difficult Court term for President Obama and other supporters of unlimited government.

Hobby Lobby is in a somewhat unusual situation, and the Court’s ruling reflects that: Although it is a large company, its ownership is concentrated within a single family — a family with strongly held religious beliefs (which the administration did not challenge in court).

The Court’s opinion in the case applies only to companies in similar positions (whether large or small) though the language of the ruling suggests broader applicability than simply regarding Obamacare (much like the Citizens United decision, one of the most hated by liberals in recent memory): “Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them. “

In other words, walking out of your front door and into your office does not terminate your First Amendment rights any more than it terminates your existence as a human being. It is remarkable that anyone could think it otherwise.

Because Hobby Lobby covered 80 percent of birth control methods approved by the federal government, the lawsuit represented — as much as a question of religious liberty — the latest necessary challenge to the Obama administration’s heavy-handed hubris.

Former HHS Secretary Kathleen Sebelius could have allowed Hobby Lobby a partial exemption from the rules rather than threatening the company with $475 million in annual penalties. They could have come to a reasonable compromise (such as government supplying the objected-to “benefits,” a remedy suggested in the majority opinion) rather than forcing a case that they ended up losing at the Supreme Court.

But just as with recent Court cases regarding EPA overreach and illegal Obama “recess appointments,” the petty tyrants playing Follow the (Dear) Leader want to respect their authoritah, and insist that you subject your wishes, your rights, your oh-so-inconvenient Constitution, to your intellectual and moral superiors. This, like all things Obama, is not about policy details; it is about control.

An important section of Justice Alito’s opinion notes that — again in typical Obama administration fashion — the HHS “in effect tell[s] the plaintiffs that their beliefs are flawed.” The Court reiterated yesterday that “it is not for us to say that the line [a religious person] drew was an unreasonable one.” Again, try telling that to anyone who, like President Obama or Hillary “I was poor, really!” Clinton, is a follower of Saul Alinsky.

The Hobby Lobby case rested in part on whether the government had a compelling interest in the challenged regulation and whether there is a less burdensome way of achieving that interest. As attorney Mark Rienzi, speaking for the Becket Fund which represented the company, noted in a Monday conference call, the Obama administration has given waivers (for non-profit organizations) from the contraception mandate to health insurance plans which cover millions of Americans.

Therefore, by the government’s own actions it has demonstrated that its interest cannot truly be compelling. Furthermore, there is always a less burdensome way for government to achieve a goal than to force private people (including in corporate form) to be the implementing agents of a policy to which they have strong religious objections. In short, the government did not have a leg to stand on.

But that doesn’t stop a good liberal. And so, in a strident dissent, Justice Ruth Bader Ginsburg quotes from the abortion-related Planned Parenthood v. Casey case of 1992: “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”

Ginsburg’s implication, which should be particularly offensive to women, is that a woman can’t live a productive life without government forcing other people to pay for her birth control, not least when the most commonly used form of contraception, “The Pill,” can be purchased at thousands of pharmacies across America for about $9 per month.

The left, including Justice Ginsburg, completely (and intentionally) misrepresents the concept of insurance. There is a reason that auto insurance doesn’t cover brakes and wipers, that homeowners insurance doesn’t cover appliances wearing out: these are easily foreseen and not potentially financially devastating expenditures. Providing inexpensive, easily anticipated products or services “without cost sharing” is not health insurance; it is socialism.

Moreover, it smacks of a belittling opinion about women which the feminist movement has fought against since its inception: that females are incapable of doing things by and for themselves, without needing others — especially men — to take care of “the little lady.”

Additionally, Ginsburg argues that the Court’s view of corporations, particularly for-profit corporations, as having constitutional rights is in error and that they are not due the protections of RFRA (or much else). Justice Sotomayor apparently agreed with Ginsburg. But even in dissenting from the majority opinion, liberal Justices Breyer and Kagan refused to accept Ginsburg’s claim that Americans lose their constitutional rights during business hours; only two of the nine Justices therefore took Chris Hahn’s radical view that you lose your rights when you enter or, heaven forbid, create a workplace.

Although the Court got it right, conservatives and libertarians alike — namely any American who understands the primacy of our Founding principles over the utilitarian approach of statists — have an uphill battle on our hands when it comes to the population overall.

Pace Karl Rove’s repeated misstatements claiming broad public support for Hobby Lobby’s position, a Kaiser Family Foundation poll released in April found that by a nearly 2-to-1 margin, the public supports the contraceptive mandate, with 55 percent saying that “for-profit companies should be required to cover birth control in their workers’ health plans, even if it violates their owners’ personal religious beliefs.” The strongest support for government trumping religious liberty comes from women, Democrats, and young adults. A Reuters/Ipsos poll released the day before the Hobby Lobby decision found similar — and similarly disappointing — results.

President Obama and Sandra “My uterus is your financial responsibility” Fluke have won the early rounds of the public debate in a way that should disturb anyone who recognizes and values what the United States of America is supposed to stand for. But Obama and Fluke do neither of these things; after all, what does it say about a candidate for president whose stated goal is to “fundamentally transform” the nation he seeks to lead? Surely not that he understands or values its bedrock principles.

The threatened fines against Hobby Lobby, Conestoga, and other companies may have been enough to put them out of business. Would Ms. Fluke have considered it a form of women’s liberation for the many thousands of female employees of the firms to lose their jobs rather than have jobs they willingly hold despite — the horror — of not having company-provided IUDs? Unfortunately, the answer to this question is not clear. And this, dear reader, is the true heart of the Progressive enemy — not the “loyal opposition” but the true nemesis of freedom, reason, and humanity.

Until “hearts and minds” are changed so that Court decisions such as Hobby Lobby are heralded not only as correct, but as obviously so, these small victories mean little in the longer war against a determined and patient foe.

In the next-to-last case of the term, Harris v. Quinn, the Supreme Court ruled that home health care workers cannot be forced by the state of Illinois to pay dues to a union (the SEIU, in this case) of which the workers are not members and from which they derive no benefits. While a welcome ruling, the Court missed an opportunity to take a broader stand against forced payment of union dues, especially by public sector workers.

What is remarkable in both the Harris and the Hobby Lobby cases is that there were four votes for the government’s position: There were four votes saying that Americans should be forced to pay dues to a union that they are not members of and which cannot be shown to be benefitting them in any way and there were four votes to let the government trump the First Amendment’s guaranteed free exercise of religion. Did anyone tell Obama, Sebelius, and friends that it is the First Amendment for a reason?

The country is one conservative judicial retirement away from tyranny, a fact that has tremendous implications for what voters should do (perhaps even Tea Party Republicans in Mississippi) in November 2014 and two years hence.

Overall, this Supreme Court term was a brief but useful application of constitutional limitations among broad areas of government intrusion and overreach. InNLRB v. Canning, the president’s clearly unlawful “recess appointments” were found to be so by a unanimous Court, effectively overturning hundreds of labor-related decisions made by union thugs empowered by our thuggish president. In McCullen v. Coakley, the again unanimous Court ruled against Massachusetts’ 35-foot “buffer zones” around abortion clinics as a violation of free speech rights (though they did not overturn the validity of smaller distances). In Utility Air Regulatory Group v. EPA, the Justices limited the government’s ability to impose emissions regulations on small emitters of greenhouse gases, although the decision did, as Justice Antonin Scalia noted, give the EPA “almost everything it wanted in this case.” And in Riley v. California, a unanimous Court ruled that in most circumstances police must obtain a warrant before searching the cell phone of someone they arrest. (How distressing and remarkable that any court had ever ruled otherwise!)

The notoriously fluid Justice Anthony Kennedy did no meaningful harm this term, and neither did Chief Justice John “I saved Obamacare” Roberts — who continues efforts to redeem himself. Of the Court’s 72 cases in this term, in only two was a 5-4 majority made up of the four usual liberal Justices (Ginsburg, Breyer, Sotomayor, Kagan) plus Kennedy. Four of the other six 5-4 majorities were comprised of the usual conservative Justices (Roberts, Scalia, Thomas, Alito) plus Kennedy.

As usual, the Ninth Circuit Court of Appeals (based in San Francisco) was the most overturned court (1 case upheld, 10 overturned), though the Sixth Circuit (based in Cincinnati) was not far behind at 2-9. This is only the second time since John Roberts became Chief Justice in 2005 that the Ninth Circuit didn’t have all to itself the dubious lead in total cases heard by the Court; both the Sixth and the Ninth had 11 cases granted cert.

This Supreme Court term had several notable aspects (thank you to SCOTUSblog for the data):

  • 65 percent of the opinions were unanimous, versus an average of 44 percent over the prior five terms, during which no term reached even 50 percent unanimous decisions. There was so much comity this term that even the lowest-agreeing pair of Justices, Samuel Alito and Sonia Sotomayor, were on the same side in 74 percent of cases. (Justices Thomas and Alito agreed 96 percent of the time, which means that Sam Alito is quite a wise man.)
  • Only 14 percent of this term’s cases resulted in 5-4 decisions, versus an average of 23 percent from 2008-2012.
  • Only one court term since 2000 has seen fewer cases decided by the Court than during this term. (Sixty-nine in 2007 versus 72 this term and an average of 79 since 2000. In the four decades between 1950 and 1990, the average was roughly 130.)

Overall, the just finished Supreme Court term was a pleasant surprise, representing a slight nudge on many levels of government back toward reasonable limits on coercive power and a modicum of respect for the Constitution — including a much-needed reminder that it protects all of us “humans” — even when we go to work. 

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About the Author
Ross Kaminsky is a self-employed trader and investor and is a senior fellow of the Heartland Institute. He is the host of The Ross Kaminsky Show on Denver's NewsRadio 850 KOA on Saturday mornings from 6 AM to 9 AM. You can reach Ross by e-mail at rossputin(at)rossputin(dot)com.