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Monday, July 07, 2014

Courts - More about the SCOTUS term, and the spawn of Hobby Lobby

Nina Totenberg of NPR had a nearly 8-minute report this morning on Morning Edition. In a section about "campaign finance regulations, union power and mandated contraceptive coverage for corporations under the Affordable Care Act" Totenberg writes:

In each of these decisions, the conservative majority reversed decades of previous rulings, or came close. * * *

In each of these cases, the conservative majority based its ruling on the First Amendment right of free speech or free exercise of religion. And some scholars on both the right and left see that as something of a new twist on an old story.

Today, legal historians speak disparagingly of the so-called Lochner era from the 1880s to the mid-1930s. During that time, the Supreme Court, in the name of property rights, consistently struck down legislation barring onerous working conditions or seeking to increase the bargaining power of employees in dealings with employers.

Almost all of the precedents from the Lochner era are now gone, viewed as wrongly decided. But some scholars suggest those decisions are being reborn in a new guise: the First Amendment.

"It's the new Lochner," laments Yale Law School's Akhil Amar, who comes from the moderate left of the legal spectrum. "The First Amendment is increasingly becoming everyone's first resort for all kinds of claims that historically were not thought of as First Amendment claims."

By that, Amar means voiding a century of campaign finance understandings, 80 years of precedent on government mandates for profit-making corporations, and nearly overruling 40 years of precedent on fair-share union fees. * * *

The court is deeply split, and for the first time in its history, its ideological alignment reflects partisan splits, too. The decisions made today are for the most part the product of choices made by past presidents with their appointments.

Jess Bravin reported July 3rd in the $$$ WSJ in a story headed "High Court Female Justices Dissent From Wheaton Contraception Order: Justices Sotomayor, Ginsburg and Kagan File 17-Page Dissent to Majority's Order":
WASHINGTON—The Supreme Court's divisions over contraception tore open again Thursday, when the three female justices accused an all-male court majority of going beyond the Hobby Lobby decision to interfere with insurance coverage under the Affordable Care Act.

Justice Sonia Sotomayor, joined by Justices Ruth Bader Ginsburg and Elena Kagan, filed a 17-page dissent to a court order allowing Wheaton College, a Christian institution in Illinois, to stop covering birth control without filing a form with its insurer asserting religious objections to emergency contraception.

The majority's order, which was unsigned, "risks depriving hundreds of Wheaton's employees and students of their legal entitlement to contraceptive coverage," she wrote. And because many other religious nonprofits have raised similar objections to birth control, the ruling "will presumably entitle hundreds or thousands of other objectors to the same remedy." * * *

"Those who are bound by our decisions usually believe they can take us at our word. Not so today," Justice Sotomayor wrote. "After expressly relying on the availability of the religious-nonprofit accommodation" to justify expanding exemptions from contraceptive coverage to closely held commercial businesses, "the court now, as the dissent in Hobby Lobby feared it might, retreats from that position."

Dahlia Lithwick and Sonja West wrote a stinging column Slate on July 4th, headed "Quick Change Justice: While you were sleeping, Hobby Lobby just got so much worse." A sample:
In Burwell v. Hobby Lobby, the Supreme Court ruled that it was a “substantial burden” on the religious freedoms of closely-held corporations for the government to require them to provide contraception as part of their employee health care plans. The court didn’t say that the government could never require a company to do something that violated its religious beliefs, but rather that the government had to use the “least restrictive alternative.” That means that if there is a slightly less burdensome way to implement the law, it needs to be used. To prove that the Affordable Care Act’s contraceptive mandate was not the “least restrictive alternative,” the court pointed to a workaround in the law for nonprofits: If there are religious objections to a medical treatment, third parties will provide coverage to the employees.

Yet in an unsigned emergency order granted Thursday evening, the very same court said that this very same workaround it had just praised was also unconstitutional, that this workaround also burdened the religious freedom of religious employers. Overnight, the cure has become the disease. Having explicitly promised that Hobby Lobby would go no further than Hobby Lobby, the court went back on its word, then skipped town for the summer.

Posted by Marcia Oddi on July 7, 2014 10:07 AM
Posted to Courts in general