Judiciary

Opinion Round-up on Hobby Lobby

New York Times Editorial Board: “It was a radical departure from the court’s history of resisting claims for religious exemptions from neutral laws of general applicability when the exemptions would hurt other people.”

“It’s hard to see the [‘substantial burden’.] Nothing in the contraceptive coverage rule prevented the companies’ owners from worshiping as they choose or advocating against coverage and use of the contraceptives they don’t like.”

New York Times: “It was vindication of the conservative movement’s efforts to chip away at laws it finds objectionable by raising questions of freedom of expression.”

“The decision … carved out a significant, albeit narrow, legal exception in the context of a broader cultural fight that social conservatives have been unable to win outright.”

“Yet even as conservatives celebrated coming out on the winning side of a divisive social issue, their court victory may have also handed Democrats an issue that will turn out liberal voters in the fall.”

Emily Badger: “In the long line of decisions about women’s reproductive rights that have not been made by women, this is yet another.”

“The difference between the majority opinion of five of the court’s men and the dissent of its three women (plus Justice Stephen Breyer) is instructive … the dissent is very much about women — about their health, the sums they spend to access care and the costs they pay when none is available.”

One solution, as featured in Vox: “In the long term, advocates for access to contraception should turn to something else: making birth control available over the counter.”

Even When They Agree, Supreme Court Justices are Miles Apart

Garrett Epps: “Of the Court’s 70 cases this term, a whopping 47 have been unanimous. Even if (as seems likely) the final two cases are split, that’s still two-thirds; none of Roberts’s previous terms has scored more than 50 percent. In addition, at most 10 cases this term will have been decided by a 5-4 vote, the fewest since 2007.”

“But the unanimity above refers to results. Equally important in a Supreme Court case is the reasoning on an opinion. A Court’s explanation of its decision will create a new precedent and narrow, expand, or overrule old ones. And in reasoning, the Roberts Court is sharply divided.”

“But even if the term ends with snarls, we should not underestimate Roberts’ accomplishment. Unanimous results are more durable and useful than 5-4 splits. The chief may in fact be forging the ‘team dynamic’ he spoke of wistfully in 2007. But there are likely to be some brawls in the locker room; even when they agree, these justices are miles apart.”

Public Views on Contraception Coverage Differ from Court’s Ruling

Megan Thee-Brenan of the New York Times: “The ruling by the Supreme Court on Monday in the Hobby Lobby case runs counter to general public opinion, a recent poll shows.”

“Last month, a Kaiser Foundation poll found that 53 percent of the public thought employers should be required to cover birth control regardless of whether it violates the owners’ religious beliefs.”

“As their term ends, the Supreme Court justices might want to think over another poll. A Gallup poll done early in June found just 30 percent of Americans had a great deal or a lot of confidence in the Supreme Court, while 41 percent had some, and 26 percent had very little or none.”

Why Only Government Should Provide Health Insurance

Jonathan Cohn reacts to the Supreme Court’s decision in the Hobby Lobby case.

“The majority opinion, written by Justice Samuel Alito, says that the government cannot force closely held corporations to finance coverage of contraception if the owners of those corporations object on religious grounds. The phrase ‘closely held’ is important here. It comes from the IRS and it refers to companies in which five or fewer individuals own more than half the stock. Taken literally, the decision is limited to just those employers.”

“But Justice Ruth Bader Ginsburg, in her dissent, called Alito’s opinion a decision of ‘startling breadth’ … According to one 2009 study, about half the workforce is employed by closely held corporations. And unless I’m misreading the opinion, Alito and the four justices voting with him haven’t ruled out expanding the exemption to include more businesses. More important, the ruling establishes a new principle: that corporations can have the same rights of religious belief and expression that individual people do. I’m not a lawyer, but it sure sounds like this could allow them to opt out of other laws they find objectionable, including anti-discrimination laws.”

“The obvious solution to this dilemma is to take health insurance away from employers altogether.”

“And, over the long run, it’s easy enough to imagine a world in which employers were truly out of the health insurance business altogethera world in which all people got health insurance directly from the government or tightly regulated insurers.”

The Supreme Hypocrisy of the Supreme Court’s Buffer Zone

Wall Street Journal: “The U.S. Supreme Court, which Thursday struck down a Massachusetts law that established a 35-foot buffer around abortion clinics, enjoys its own protest-free zone.”

“A federal law bars protests from the white marble plaza of the U.S. Supreme Court building, an irony that was not lost on supporters of abortion rights.”

“Court rules, drawn from the law, ban assemblies, processions and displays on court property.”

“’No person shall engage in a demonstration within the Supreme Court building and grounds,’  the rules say. ‘The term ‘demonstration’ includes demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to draw a crowd or onlookers.’”

“There is one key difference between the Supreme Court buffer zone and the zone the high court struck Thursday today around abortion clinics. The Massachusetts law keeps people off of public sidewalks, while the court’s regulation doesn’t.”

Other Obamacare Lawsuits Poised to Follow Hobby Lobby

Dan Diamond: “Nearly two years after the Supreme Court’s ruling on the Affordable Care Act captivated the nation, another major ACA decision—Burwell v. Hobby Lobby—is expected any day.”

“But unlike Hobby Lobby, several still-looming cases are fundamental challenges—and have the potential to deal major changes to the ACA.”

NFIB v. Sebelius can be perceived as a major victory for opponents of the ACA—a success that only birthed more lawsuits. While the plaintiffs didn’t achieve their primary goal—getting the Supreme Court to strike down the ACA’s individual mandate—the ruling did make the Medicaid expansion optional for states, changing the course of health coverage in nearly half the nation.”

“How seriously should we take these other lawsuits? Law experts are cautious—but split.”

Washington & Lee law professor Tim Jost: “I don’t think any of these cases are ultimately going anywhere.”

University of Kentucky law professor Nicole Huberfeld: “I remain skeptical about these other challenges … [But] the Roberts Court has shown willingness to hear novel constitutional theories, so settled doctrine no longer provides an easy answer.”

“Meanwhile, the other lawsuits are seen as longer shots to ultimately reach the Supreme Court. At least one case—the challenge over Independent Payment Advisory Board—is viewed as a potential winner, if it ever proceeds.”

American Confidence in All Branches of Government Reaches Record Lows

Gallup: “Americans’ confidence in all three branches of the U.S. government has fallen, reaching record lows for the Supreme Court (30%) and Congress (7%), and a six-year low for the presidency (29%). The presidency had the largest drop of the three branches this year, down seven percentage points from its previous rating of 36%.”

“While Americans clearly have the lowest amount of confidence in the legislative branch, ratings for all three are down and are at or near their lowest points to date. At this point, Americans place much greater faith in the military and the police than in any of the three branches of government.”

Americans' Level of Confidence in the Three Branches of Government

Supreme Court’s Buffer Ruling Belies a Violent Reality of Abortion Protest

The New York Times Editorial Board makes the point that “out in the real world” all anti-abortion advocates are not peaceful protestors, “and buffer-zone laws like the one in Massachusetts … are a considered response to a decades-long threat to public safety, largely in the form of harassment, physical intimidation and worse by people opposed to abortion.”

“Yet on Thursday the Supreme Court, in McCullen v. Coakley, struck down that law for violating the First Amendment.”

“This ignores what actually happens on the ground. As the factual record of the case made clear, Massachusetts has, like most states, endured a long and sometimes violent history of protest at reproductive-health clinics, including the 1994 murders of two Planned Parenthood workers by an abortion opponent.”

“The justices have firsthand experience with striking that delicate balance. The Supreme Court building’s own buffer zone, which includes its vast plaza and is far larger than 35 feet, prohibits ‘demonstrations, picketing, speechmaking,’ or any other conduct that is ‘reasonably likely to draw a crowd or onlookers.’ Yet all manner of viewpoints are expressed without difficulty every day on the sidewalk in front of the court.”

” … paper leaflets and polite words are not the real threats women face in trying to exercise their constitutional right to an abortion.”

Supreme Court Clips President’s Recess-Appointment Powers

Bloomberg: “The U.S. Supreme Court curbed the president’s power to make temporary appointments without Senate approval, backing congressional Republicans and dealing a blow to President Barack Obama.”

“The justices ruled unanimously that Obama exceeded his constitutional authority when he appointed three members of the National Labor Relations Board in January 2012. Four justices would have gone further in limiting the appointment power.”

“The case was the court’s first look at a constitutional provision that lets the president make temporary appointments to high-level posts during Senate recesses. The decision leaves the Senate with broad power to thwart the president’s nominations, letting lawmakers all but nullify the recess-appointment power by holding brief, “pro forma” sessions every few days.”

 

A Darker View of the Court’s Ruling on Cellphone Searches

Linda Greenhouse: “… perhaps the most remarkable aspect of the Supreme Court’s decision on Wednesday barring warrantless searches of cellphones was how simple and obvious Chief Justice John G. Roberts Jr., who wrote the 9-0 opinion, made it all sound.”

“I had planned to conclude my discussion of the court and the search cases with a mention of ’empathy,’ the ability to put oneself in someone else’s shoes, so often missing from the Supreme Court’s criminal law decisions but perhaps on display here. But on reflection, it’s not really empathy. The justices are walking in their own shoes. The ringing cellphone could be theirs — or ours.”

Fred Barbash of the Washington Post: “Your phone, says the court, is your life. Cracking it open is even more revealing than rummaging through your home, which the Fourth Amendment’s protection against unreasonable searches was designed to protect.”

“And this the court did not say: Search warrants are not that hard for police to get … They don’t have to prove you’ve done anything. You are not consulted.”

“Also, police need a warrant to search your phone but others … do not. The Constitution protects you from actions by the government, not anyone else.”

“And the court said police don’t always need a warrant.”

“The message from the court: Be careful what you put on your phone.”

A Poison Pill in EPA Ruling That Could Contaminate Obamacare Rulings

Cass Sunstein, writing in BloombergView, argues that “the Supreme Court decision involving the Environmental Protection Agency’s authority to regulate greenhouse gases … contains a poison pill, one that lawyers will undoubtedly invoke in future cases involving the Affordable Care Act.”

“While the decision … largely upheld the EPA’s authority, it invalidated the agency’s decision to exempt small emitters and thus ‘tailor’ its greenhouse-gas regulations to allow greater flexibility.”

“In the context of the Affordable Care Act, of course, there have been heated controversies over the Obama administration’s efforts to delay implementation and to create other forms of flexibility.”

“It is too soon, of course, to know whether the court will count ‘transition relief’ under the Affordable Care Act as an illegitimate effort ‘to revise clear statutory terms that turn out not to work in practice,’ as a legitimate refusal to enforce legal requirements, or as something else altogether. But there’s no question that the court’s discussion will be invoked in Affordable Care Act litigation — and it is reasonable to wonder whether Scalia had that in mind as he wrote the EPA opinion.”

Supreme Court Ruling Shows Congress’ Inability to Act

New York Times Editorial Board comments on Monday’s Supreme Court ruling to uphold EPA’s greenhouse gas permitting program.

“The case, Utility Air Regulatory Group v. E.P.A., preserves the government’s ability to confront global warming while also demonstrating Congress’s persistent failure to update the law to meet modern needs. In the absence of congressional action, the E.P.A. was left alone to deal with an impossible situation.”

“The point, as Justice Stephen Breyer argued in a partial dissent, was to adhere to the law’s clear purpose and to allow the agency the flexibility to make decisions based on new information.”

Source: Wall Street Journal