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Thursday, July 10, 2014

The elephant in the room

As everyone knows, the Supreme Court issued an order allowing Wheaton College to refuse to submit written documentation to insurance carriers regarding its unwillingness to fund contraception.  According to the Times' account, "The court’s majority said Wheaton College need not fill out the forms. Instead, the order said, the college could just notify the government in writing. The government, it said, remains free “to facilitate the provision of full contraceptive coverage.”  This provoked a dissent from what the article describes as the "three female Justices."  Similarly, in an editorial condemning the order, we read the following two sentences:


"But for the court’s male justices,[Hobby Lobby ittself] didn’t seem to go far enough....  This prompted an angry response from the three female justices — Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan." 

Two comments:  First, I may owe Justice Ginsburg an apology for suggesting that her dissent in Hobby Lobby adopted too sharp a tone and failed to recognize that the decision didn't represent falling skies.  After the order, I'm more prone to wonder, though, on tactical grounds, I would still be predisposed to somewhat milder language.  But it's a real judgment call, and it's hard to argue that she should have had any faith in the moderation of her colleagues.

The second comment refers to the quite obvious demographic elephant in the room that the Times simply fails to consider.  They prefer to portray the cleavage in the Court as the guys against the gals.  Presumably we can all accept the proposition that "male justices" are simply ignorant of the importance of contraception to planning one's own life, whereas, of course, "female justices" are vividly aware of such realities.  No doubt there's something to this.  But, quite obviously, the male Justice Breyer, is able to figure out its importance, so presumably something more is going on, for empirically-oriented Court watches, than mere gender.  What might that be?

The Times and almost everyone else in the "mainstream media" (unlike, say, Katha Pollitt in The Nation), find it indelicate to refer to the majority as "five conservative Republican Catholics" and the dissenters in Hobby Lobby as "three Jews and a clearly less conservative Catholic than her male colleagues." Can it really be pure coincidence that the Hobby Lobby five are, without exception, conservative Catholics (and not merely conservative Republicans)?  Or, for that matter, that the dissenters are not?  To be sure, one can't explain most of the Supreme Court decisions by reference to religious background.  The Court's viciously anti-labor decisions,dating back to the arrival of the militantly anti-labor Lewis Powell, have nothing at all to do with the majority's Roman Catholicism.  Indeed, one can only wish that the majority had imbibed more of the Catholic Social Justice tradition when learning the catechism (or, for that matter, that they read some of Pope Francis's comments on the poor and realized that labor unions historically have had something to with bettering the plight of the poor and downtrodden).  And I seriously doubt that religion has anything to do with explaining the Court's death penalty jurisprudence (if one wants to dignify it with that term), since, again, the Catholic Church institutionally is admirably skeptical about state killing as well as other forms of killing (including, as no doubt some of you will wish to inform me, abortion).  But, of course, I doubt that gender explains many of the decisions either.  

The point is that the Times, like many other commentators, apparently feels free at least on occasion to take note of gender and appointing presidents (the latter being especially prominent in stories about "inferior" courts where readers aren't expected to know such things), but never ever finds it relevant to note religion.  But, of course, the very premise of Hobby Lobby is that religion is not simply pietism, the kind of thing one does in the privacy of one's home, church, synagogue, or mosque; instead, for millions of people, religion is an overarching way of looking at the world that influences how one acts in the world. I doubt that George W. Bush was being simply opportunistic when he named the Bible (and Jesus) as the most influential book in shaping his life, just as Bill Clinton had earlier proclaimed the centrality of his religious faith to shaping his politics.  So if this is true for employers, legislators, and ven Presidents--or state governors like Ohio's John Kasich, who admirably supported Medicaid expansion in Ohio because he believed that as a (conservative) Christian, he had a duty to help the poor, even if he said the proper conservative things about how bad Obamacare is--then why should we think that judges, including members of the Supreme Court, are uniquely free from the influence of theological views that they might literally have begun learning as youngsters?  

I leave open the possibility that we're better off as a society by adopting the willful blindness illustrated in the Times editorial.  But maybe we're not.  The paradox is that having a conversation bout the wisdom of the Times's practices in identifying judicial demographics would itself require recognizing the existence (and potential importance) of the elephant.  

UPDATE:  Whatever else may be meritorious or wrong about my post, I do think that a discussant below is absolutely correct in suggesting that Justice Kennedy is probably not best described as a "conservative Catholic" inasmuch as he has clearly been the leading advocate on the Court for the rights of gays and lesbians (and, I suspect, when the Court gets an appropriate case, the rights of transgendered persons as well).  I would be curious if any prominent Catholic is identified with libertarianism as a systematic political theory, inasmuch as it really does require a disdain for community in favor of liberty (and what conservatives in the old days called "license"). 

21 comments:

  1. IOW, it fell out the way it did, because only the Catholics on the Court took the Greens' religious beliefs seriously? Maybe.

    Or maybe only the women on the Court thought the RFRA could never apply to women getting free stuff.

    I don't know. What I do know is this whole, "Hey, look: Groups A and B disagree! This proves that group B is behaving badly!" line of 'reasoning' irritates me.

    Folks, showing that a disagreement breaks down along demographic lines doesn't demonstrate which side of the disagreement is right. It's not even suggestive!

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  2. "Clevage in the court." Really?

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  3. I don't know how you define "conservative Catholic," but Justice Kennedy's status didn't prevent him from voting for abortion and gay rights. Maybe he is a "conservative" Catholic in the same sense that Justice Thomas is a "white" man, according to Senator Reid.

    These divisions will always be described in a way that fits the narrative the media wants to tell.

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  4. Fiddlin Bill needs to put some rosin on his bow as Sandy said:

    "... cleavage in the Court ..."

    not "clevage."

    Vive la difference!

    Who remembers when Catholics were reviled in America? It's much easier to remember when there were no women on the Court.

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  5. "Two comments: First, I may owe Justice Ginsburg an apology for suggesting that her dissent in Hobby Lobby adopted too sharp a tone and failed to recognize that the decision didn't represent falling skies. After the order, I'm more prone to wonder, though, on tactical grounds, I would still be predisposed to somewhat milder language. But it's a real judgment call, and it's hard to argue that she should have had any faith in the moderation of her colleagues. "

    Since it was likely that the dissenting justices knew what was up with Wheaton, they knew that they were dissenting to a lying and fraudulent decision.

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  6. "IOW, it fell out the way it did, because only the Catholics on the Court took the Greens' religious beliefs seriously? Maybe. "

    Only for birth control, unless there's another SCOTUS decision which said 'if you say that you believe that A is B, we base our decision on the made up fact that A is B'.

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  7. This comment has been removed by the author.

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  8. Sotomayor is a Catholic too. Kennedy supports gay rights. Brennan was a Catholic. Most Catholics use contraceptives. A majority in this country think abortion is appropriate in various cases. The Church just took a major poll of believers showing they clash with their positions on social issues.

    The issue here is more the conservative nature of the justices. There is an appearance of impropriety, surely, but the "five Catholics" stuff is used a bit too loosely. Believe me. Loads of baptized Catholics oppose the ruling.

    Per Brett, what "free stuff" are you talking about? The law requires covered employers -- to get a tax break -- cover certain things, such as newborn care. That is, employees work and get compensation that includes health benefits. This is no more "free" than a "free" t-shirt you only get for buying a baseball ticket.

    Also, taking religious beliefs seriously doesn't necessarily mean agreeing with denial of benefits that harm third parties.

    You should have stopped with the sound argument how correlation doesn't prove causation. Even there, demographic lines very well might be "suggestive" in certain cases.

    Anyway, enough things are wrong about certain things for us not to use false narratives, even if they are easy.

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  9. If you expect judges to write rather than to follow the law, then the judge's gender, culture, faith and upbringing will all come into play deciding what law to write.

    This is a major argument in favor of original meaning textualism.

    A court of laws rather than men and women.

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  10. Our CO gasbag observes the old cliche:

    "A court of laws rather than men and women."

    Alas, the Court is made up of men and more recently women. And laws are made by men and women via the Legislative and Executive branches. And the men and women on the Court in interpreting/construing those laws may not be perfectly objective, ignoring their life experiences. Now what was it Justice Holmes said about experience not logic? There have always been elephants in the room.

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  11. Linda Greenhouse's column on this general topic was interesting.

    For instance, how Congress at times goes beyond what the Constitution requires. The question then becomes if there is a problem with that, esp. some conflicting constitutional bar.

    SCOTUS thought RFRA itself went to far as applied to states (Boerne case). There are other possible problems. As the dissent here showed. Meanwhile, interesting case involving a Muslim prisoner taken for next term.

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  12. Something like this issue came up, in some pieces by Geof Stone, after the last partial-birth-abortion opinion. I responded here:

    http://uchicagolaw.typepad.com/faculty/2007/04/our_faithbased__1.html

    And here:

    http://www.nationalreview.com/bench-memos/49573/professor-stone-again-our-six-catholic-justices/richard-garnett

    And, more generally, I suggested a way to think about the fact that, at present, the Court's five "conservative" (or, Republican appointed) justices are Catholics:

    http://online.wsj.com/news/articles/SB10001424052702303491304575187970162324004

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  13. Kennedy repeatedly showed his conservative leaning position on abortion rights.

    True enough that he supports some basic right to choose there, but the Catholic Church accepted Griswold on that level. Also, Catholic doctrine accepts some rights for gays.

    But, Kennedy is fairly labeled "libertarian" as a whole to the degree the word can be consistently applied to the justices at hand. This includes, contra his tone in abortion cases, his tone in gay rights cases. Still, abortion rights divide self-proclaimed libertarians.

    The word is a bit cloudy.

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  14. "I would be curious if any prominent Catholic is identified with libertarianism as a systematic political theory"

    Well, many libertarians I know might say Lord Acton, but for myself I think any self-professed libertarian who had the sympathy he had for the Confederacy and slavery is as coherent as a squared circle.

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  15. I appreciate Mista W's response to Sandy's "Update." Any comments from our current day Lord Acton "usual suspects" at this Blog?

    And kudos to Mark Tushnet for his 7/11/14 post "Congress Created Single-Payer Health Care!" I'm reminded of Charles Dickens' Oliver Twist:

    “If the law supposes that,” said Mr. Bumble,… “the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.”

    in considering the Court's conservative majority in Hobby Lobby and Wheaton.

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  16. Not wanting to pay tases some of which goes to things your religion disapproves of is sure loser. but that does not end the debate. Consider a pscifism-based claim to religious exemption from a generally applicable law that has nothing to do with sex or taxes. My hypo is a Quaker owned business that asks for an exemption from the various (and quite onerous) obligations imposed on employers when an employee who is a reservist is called to active duty, e.g., committing to re-employ them, which may mean hiring only temps during the activation period. Of course, a court could decide there is no less restrictive alternative, but if Wheaton means a less restrictive alternative exists if the government can take on the full tssk of providing the benefit, it could imply the LRA is the government, working with the reservist, has to find the re-employment opportunity. IOne reading of HL and Wheaton is that if the employee can get the exact benefit otherwise with no problem, the employer-religionist gets to avoid the general law, but not otherwise. But that is not the only possible reading.

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  17. Not wanting to pay taxes some of which goes to things your religion disapproves of is sure loser. but that does not end the debate. Consider a pacifism-based claim to religious exemption from a generally applicable law that has nothing to do with sex or taxes. My hypo is a Quaker owned business that asks for an exemption from the various (and quite onerous) obligations imposed on employers when an employee who is a reservist is called to active duty, e.g., committing to re-employ them, which may mean hiring only temps during the activation period. Of course, a court could decide there is no less restrictive alternative, but if Wheaton means a less restrictive alternative exists if the government can take on the full tssk of providing the benefit, it could imply the LRA is the government, working with the reservist, has to find the re-employment opportunity. IOne reading of HL and Wheaton is that if the employee can get the exact benefit otherwise with no problem, the employer-religionist gets to avoid the general law, but not otherwise. But that is not the only possible reading.

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  18. The point is that the Times, like many other commentators, apparently feels free at least on occasion to take note of gender and appointing presidents (the latter being especially prominent in stories about "inferior" courts where readers aren't expected to know such things), but never ever finds it relevant to note religion. phoenixlol.com
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    ReplyDelete