Monday, June 30, 2014

Justice Ginsburg's inexplicable first two pages

Sandy Levinson

I will leave it to my betters to offer far more learned commentary than I on the implications of Hobby Lobby (though I suspect that, as in so many other instances, we won't know for many years of its actual importance:  remember Lopez?).  All I want to say is that I found the beginning of Justice Ginsburg's otherwise able dissent to be absolutely inexplicable.  Reading Justice Alito's opinion, I was impressed by how it adopted the rhetoric of quasi-minimalism:  i.e., closely held corporations, they objected only to four among a bunch of contraceptive methods, etc.  If the Court overreached, it was in deciding the case without remanding it for a full hearing on whether there really and truly is a less-restrictive-alternative other than the government's paying the money (which is disingenuous in the extreme, given that there is no chance whatsoever that Congress would pass an appropriation to cover contraception).  But Ginsburg violated the first rule of tactical dissents:  Do not cry "The British are coming"" or "The sky is falling" unless in fact the British are coming or the sky is falling.  She could so easily have conceded, thinking of future cases, that the decision was, in its own way, a modest one, but even the modest version was a mistake in its analysis of RFRA.

I would be extremely interested, when the papers are open after I'm gone, if the other dissenters pushed back on the extremity of the first couple of pages or if they a) agreed that that was the proper tone to adopt or b) felt they simply couldn't take on the (self-appointed?) leader of the "liberal bloc."  I think that Ginsburg has publicly spoken of her admiration for Justice Brandeis.  Perhaps she should reread Alex Bickel's Unpunblished Opinions of Justice Brandeis, which included some suppressed dissents on the ground that it would be better to pretend agreement and then, at a later case, argue that the precedent was in fact a narrow one rather than to ring the alarm and thus concede the merits of a later argument about its breadth.  I wonder, for example, if Justice Scalia would change some of his rhetoric in Lawrence and Windsor about the logic of those opinions requiring same-sex marriage.  He was right, of course, but was he well-advised to say it?  I suspect that his comments have been cited with frequency by judges ruling in favor of same-sex marriage.

One other point:  The Court has literally no idea what to do with the concept "religion," other than to suggest that it is fundamentally impermeable to standard-form rational analysis.  "Because this is the way I feel" seems to be a conclusive argument in the religions realm  (except where drugs are concerned).  I presume that secular conscience will never be similarly protected, though the Court does not explain why, unless it is because of a kind of brute textual positivism drawn from the "free exercise of religion" clause of the Religious Freedom Restoration Act.  That may be correct, just as we're stuck with the stupidity of January 20 as Inauguration Day because of the 20th Amendment.  In any event, those of us unhappy with the decision should perhaps blame Congress for passing RFRA (which I supported) and RLUPA than the Court for trying to give content to the rather extreme language of the statutes.

UPDATE:  A very sophisticated friend has suggested that another explanation for the tone of Ginsburg's dissent is that it was actually responding to a penultimate version that, perhaps, had not yet gotten Kennedy's vote.  That version might well have been more extreme (not limiting the analysis to closely held corporations, for example, or emphasizing that religious objections to vaccinations will basically not be honored, etc.).  But the actual Opinion of the Court simply didn't merit the kind of language Ginsburg uses at the beginning, and those of us who are on her side of the debate would have been better served with a more modulated dissent.  Now what will she say in the future if there are indeed five votes for "stronger" accommodationism?

FURTHER UPDATE:  As one of the discussants below suggests, perhaps Ginsburg (justly) feels that she was taken to the cleaners by the too, too clever Chief Justice on NAMUNDO, but the point is that she went along with that opinion and what she later discovered was its dreadful language.  I'm not suggesting that she should have signed Alito's opinion, which I wouldn't have signed either.  The disagreement is whether it can accurately be described as the sky falling.  What will she say the next time if the sky really does fall?.  She ought to be able to say that the majority was lying through its teeth when it promised that the decision was temperate, but she has given up that rhetoric by refusing to take seriously the language actually used in the opinion.  The opening of her dissent is the equivalent of the letters that I'm sure all of us have received, even if from groups on the opposite side of the spectrum, that suggest that a piece of relatively mainstream legislation is the beginning of the end (any gun control means the confiscation of all weapons, any attempt to get control over entitlements, given the greater percentage of geezers like myself, means the end of social security, and so on).  It's all too effective strategy for fund-raising, but it makes legislation and compromise near impossible.       


There is nothing really unusual about dissents trying to show the majority opinion goes too far by not using the possibly most narrow interpretation of its tenets.

Also, as a person noted at Andrew Sullivan's blog in response to his suggestion the ruling is narrow, the logic of the majority quite realistically is NOT narrow.

So, it might be strategic on some level for Andrew Koppelman to speak about the "win" and assume a "heavy burden" on Hobby Lobby (contra the dissent's alternative argument), but the language of the majority is open-ended.

The union case decided today built off another such "limited" ruling. Ginsburg joined w/o comment NAMUNDO, a ruling which was "limited." The end result was Shelby, with Roberts able to speak of how all the justices joined the dicta.

Even the least restrictive alternative (offer them the same thing as various non-profits) is not presumptively accepted. It "may" be. Ditto with closely-held corporations. The opinion doesn't say ONLY such corporations are protected.

It is an open-ended invitation with faux minimalism. It doesn't even to deign (contra Kennedy) to state a compelling state interest is involved here. Especially given past actions, Ginsburg's reply on that front seems reasonable.

I suspect that the five Catholics in the majority were inclined to view religious objection from the point of view of More and Becket, while Ginsburg seems to think in terms of Guy Fawkes.

If Sandy has read Joey Fishkin's post, perhaps he might rethink his critique of "Justice Ginsburg's inexplicable first two pages." Leaving the door ajar may permit it to open further down the road. Fishkin points to "high politics," which may contribute to political dysfunction. I understand a recent poll suggests a low 30% approval rating of the Court.

Did SCOTUS just give the Pope veto power?

The explanation in the "update" doesn't seem very persuasive given how Justice Ginsburg portrayed the reach of the ruling in summarizing her dissent in court today. See Mark Walsh's report here:

Alito's opinion is poor jurisprudence in my view because he either doesn't understand basic corporate law or he doesn't want to. The only limitations on a closely held corporation is how it treats minority owners, and there it has fiduciary duties in most States, starting in CA among other states. Otherwise, it is like any other corporation, which means it is a separate entity from its owners, and it owes duties to the public and to its own employees. Justice Ginsburg smelled the cynicism emanating from the majority opinion and that it was a road map to push further to undermine the ACA and to increase corporate power at the expense of workers and the State. How a law from 1994 designed to help individuals can help a large corporation (in terms of numbers of employees) override the individual religious consciousness of employees is something that ought to make more of us as angry as Justice Ginsburg.

Maybe she wants to help the Democrats increase turnout in the midterm elections. Scalia's dissent in Lawrence did something like that in 2004 for Republicans.

Gerard's observation fails to address the numbers involved affected by the Hobby Lobby majority decision, to wit, potentially 50 %+ of the population, with the relatively few in Scalia's slippery slope in Lawrence while wars were going on in 2004. Ginsburg has been consistent in defending women's and workers' rights. So a side effect of her dissent may indeed get out the vote for Democrats in 2014 AND 2016. Note that Gerard doesn't mention the recent drop to a low of 30% popularity for the Court as perhaps encouraging votes for Democrats; perhaps if Judge Posner were on the Court ....

I had not considered the possibility that she was responding to an earlier version of the majority opinion. I suspect that is not the case, given Justice Alito's specific citations in the majority opinion to her dissent.

I presumed that she is again anticipating the long game machinations from the Chief Justice as has been shown repeatedly during his tenure, where an initial narrow decision on an issue with broad language reciting various rights (i.e., just the recognition of free exercise rights for business owners), is subsequently cited as precedent for a far broader opinion 2 to 3 years later. I think she sees this route occurring here, and is addressing this eventuality. Of course, a broader initial opinion as suspected may have focused her attention on that possible future.

Jeffrey Toobin suggests why the opinion may not be modest in the long run. RBG may share this understanding of the logic rather than the rhetoric of the opinion.

I think Mitchell makes an excellent point. I have more thoughts here:

Here's a link to a "clarification" issued by the Court of its Hobby Lobby Decision:

Might this suggest further reconsideration by Sandy of his Quickdraw McGraw critique of "Justice Ginsburg's inexplicable first two pages"?

Justice Kennedy, who never responds to dissents, noted:

At the outset it should be said that the Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.

As a matter of prudence, it seems that Ginsburg got the support of a key justice, who explicitly stated the compelling interest of providing contraceptives and suggesting the non-profit accommodation is satisfactory. An accommodation that is still in litigation.

I get the sense that the "liberal bloc" is growing tired of playing along with the conservatives' "long game" and intend to sound some alarm bells, whether for an audience of the public at large, for politicians, or for academics.

If the dissenters feel that the majority is only limiting an opinion in order to keep the Court from looking too radical to the public at large, while the majority waits for the next case to open the door even further, then the dissenters may feel that the right strategy is to yell loudly to the public about what they perceive the majority really has in mind. If Ginsburg & Co. believe there really is no hope of persuading the conservatives, then it may be that the best strategy is to take the matter to the court of public opinion and politics.

In both Hobby Lobby and the MA abortion Clinic cases, the conservative majority seems to be offering sort of an advisory opinion to the Obama Administration and to MA on simple ways to get to the same results that the majority found wanting. Perhaps this is in recognition by the conservative majority that the popularity of the Court is falling and this is a pr way for the conservative majority to show the public that they are not acting politically. All those 9-0 decisions by the Court this year apparently did not enhance how the public feels about the Court. Perhaps more of the public is listening to oral arguments - especially AFTER a Court decision that is controversial - how the ideology of certain Justices plays out. Thank you, CSPAN.

Paul Horwitz's NYTimes Op-Ed "Hobby Lobby Is Only the Beginning" presumably will draw a lot of attention from other 1st A scholars on religion.

Might 2nd A absolutists try to utilize Hobby Lobby to bring about their goals? I remember the WW II popular song "Praise the Lord, and Pass the Ammunition, and We'll All Go Free." Who is the enemy of these absolutists?

Hobby Lobby locations at malls may provide 1st A public assembly and speech in opposition to the Court's decision. 2nd A absolutists might counter with open carry, suggesting who are their enemy.

"The disagreement is whether it can accurately be described as the sky falling."

I don't think she is being chicken little herself, but wonder if SL has any update given the Court's Wheaton College order.

And/or is Sotomayor's dissent there also problematic? What of the fact it is joined by the three women, particularly sensitive given the subject?

Finally, note how "activist" it is (I use the term neutrally), including creating new administrative rules.

I agree that Ginsburg is now looking quite prescient!

Hobby Lobby is turning out to be a bigger deal than some constitutional scholars initially opined. Sandy's"concession" on Justice Ginsburg's dissent being prescient is duly noted. And Mike Dorf seems to have changed his initial reaction to Hobby Lobby following a thread of meaningful comments, including by our own Joe. Recent posts at this Blog on Wheaton College add to the potential big deal.

In my last comment on this thread I made reference to the possibility of 2nd A absolutists getting religion from Hobby Lobby to advance its 2nd A absolutism. Perhaps there was a tad of tongue in cheek, but I'm not so sure.

Yesterday, at Larry Solum's Legal Theory Blog, he posted on Linda C. McClain and James L. Fleming's "Ordered Gun Liberty: Rights with Responsibilities and Regulation," giving it his "Highly Recommended." (A link is provided to SSRN to access this article.) I'm in the process of reading this article which was the authors' contribution to the Boston University Law School Symposium "Political Dysfunction ... " that Sandy participated in. While I was in attendance, the oral presentation by the authors was limited, whereas the article goes into depth. I don't know if Sandy thinks that 2nd A absolutism contributes to political dysfunction that he laments. Perhaps a bigger question is whether Sandy might be of the view now that Hobby Lobby may contribute to political dysfunction. As I read the article I mentally impose Hobby Lobby as providing absolute rights of a religious nature to a few owners of Hobby Lobby that may impact by trumping the rights (whether sectarian or secular) of thousands of its employees. (Whatever happened to "one person, one vote" sense of justice?)

Over the years I have been impressed by Marci Hamilton's articles on RFRA (and its predecessor that apparently did not pass constitutional muster). It seems that in more recent years conservatives (religious and otherwise) have sliced and diced RFRA to the point of a for Profit corporation being a person with religious beliefs, declaring war on women's rights. Such war has been exacerbated by the Court's decision on Wheaton College and may add increasing numbers to the changing demographics that so troubles these conservatives. Can't these conservatives just convince white ladies to have more and more babies by promoting viagra and ignoring contraceptives?


Marci Hamilton (who clerked for O'Connor) is an interesting character. I take her as fairly conservative. She is a strong opponent of RFRA. Hamilton also was the winning advocate in the Boerne case, but did not just see this as a federalism issue.

She is not even a fan of Wisconsin v. Yoder. General applicable law? No special favors for religion in her book! She is particularly concerned about child abuse, writing a book on the topic, particularly how a hands off approach of religious institutions in her view was a travesty there.

I think she goes a little too far but do think her coverage (at Verdict, where Michael Dorf blogs, and her own blog) has been worthwhile. My personal take (and this applies to guns too btw) is that a middle path should be taken. Religion is an important thing and accommodations are appropriate. Up to a point.

I think the Wheaton College case is troubling on that front. To be blunt, it comes off both as greedy and hair-splitting. People who don't personally share that faith will lose patience while some might support a fair compromise. Like just submitting a form to an insurance company stating religious opposition.

Religion is not the only thing out there. Given what is at stake here, I understand the negative responses from some, but there are a lot of reasonable religious believers out there. The same applies to gun owners.

Heller was fairly reasonable on that front & SL seems to accept the result, if not the reasoning. What if instead of stating various things were reasonable regulations, it ruled in an open-ended way, with Kennedy alone as a fifth vote writing separately saying what was in the main opinion? I think it would have been a bit different.

BTW, Marty Lederman might be going off the deep end at this point. His latest is probably too much even for some law professors. Detail is good, but at some point too much. After all, it's just one little thing in a broad administrative state.

Anyway, being a law professor means theorizing, but basically it's a waiting game to see what happens. As is, I'm wary.

Speaking of wary, check out Maureen Dowd at the NYTimes today with her column "Who Do We Think We are?" loaded with a lot of depressing quotes/comments. One comment that stuck in my craw was this:

"Andrew Kohut, who has polled for Gallup and the Pew Research Center for over four decades, calls the mood 'chronic disillusionment.' He said that in this century we have had only three brief moments when a majority of Americans said they were satisfied with the way things were going: the month W. took office, right after the 9/11 attacks and the month we invaded Iraq."

These moments were low points for many of us. And political dysfunction has settled in, with the Roberts Court's contributions. So where in Article III or elsewhere in the Constitution is it provided that judicial supremacy reigns horizontally over the elected Executive and Legislative branches? Surely not the Supremacy Clause which is vertical, over the lower federal courts, states, etc.

The McClain/Fleming article does a good job as far as it goes. But if fails to set forth the 2nd A absolutist position to show that it includes unregulated non-state militia as potential insurrectionists against state and/or the central government. Article IV, Section 4 of the Constitution:

"Section 4.
The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence."

may be a means to address such potential insurrections, but this can be thwarted by Congress fearful of the NRA. Alas, political dysfunction may reign and not rain on the 2nd A absolutists' parade.

While both Heller and McDonald dicta may justify responsibility and regulation of the 2nd A, what if the states fail to provide for such and welcome the wild, wild west? Is the Court limited by federalism from doing anything? And Section 4 of Article IV is limited by the political dysfunction of Congress.


E.J. Dionne, Jr.'s WaPo column "It's time for progressives to reclaim the Constitution" picks up on Joey Fishkin and William Forbath's article "Anti-Oligarchy Constitution" that Fishkin had provided a link to in an earlier post by him at this Blog. The article addresses historically inequality in America. Perhaps Jack or Sandy will provided a post with direct links to both the article and Dionne's column. Fishkin posts occasionally at this Blog but comments are not provided for. I appreciate his posts here.

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