jackbalkin at yahoo.com
bruce.ackerman at yale.edu
ian.ayres at yale.edu
corey_brettschneider at brown.edu
mary.l.dudziak at emory.edu
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
mgraber at law.umaryland.edu
sgriffin at tulane.edu
jonathan.hafetz at shu.edu
jkessler at law.columbia.edu
akoppelman at law.northwestern.edu
msl46 at law.georgetown.edu
slevinson at law.utexas.edu
david.luban at gmail.com
gmaglioc at iupui.edu
mazzonej at illinois.edu
lmcclain at bu.edu
mikhail at law.georgetown.edu
pasquale.frank at gmail.com
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
dpearlst at yu.edu
rick.pildes at nyu.edu
dpozen at law.columbia.edu
raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
alice.ristroph at shu.edu
siegel at law.duke.edu
david.super at law.georgetown.edu
btamanaha at wulaw.wustl.edu
nelson.tebbe at brooklaw.edu
mtushnet at law.harvard.edu
winkler at ucla.edu
Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
Justice Ginsburg's inexplicable first two pages
Monday, June 30, 2014
Justice Ginsburg's inexplicable first two pages
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.
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.
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: http://www.scotusblog.com/2014/06/a-view-from-the-court-justice-alito-has-his-day-in-finale/
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. http://www.newyorker.com/online/blogs/newsdesk/2014/06/hobby-lobby-the-supreme-courts-narrow-decisions.html
I think Mitchell makes an excellent point. I have more thoughts here: http://www.legalethicsforum.com/blog/2014/07/ginsburgs-dissent-in-hobby-lobby-and-the-judges-role.html
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.
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:
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.
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.Cheap LOL Boosting
Cheap Runescape Gold
buy fifa 15 coins
Buy ESO Gold
Very awesome post , i am really impressed with it a lot
فوائد الرمان فوائد الحلبة فوائد البصل فوائد الزعتر فوائد زيت السمسم علاج البواسير فوائد اليانسون فوائد الكركم قصص جحا صور يوم الجمعه علامات الحمل تعريف الحب حياة البرزخ فوائد الزبيب
thanks so much i like very so much your post
حلي الاوريو الفطر الهندي صور تورتة حلى قهوه طريقة عمل السينابون طريقة عمل بلح الشام بيتزا هت كيكة الزبادي حلا سهل صور كيك
عجينة العشر دقائق
طريقة عمل الدونات طريقة عمل البان كيك طريقة عمل الكنافة طريقة عمل البسبوسة طريقة عمل الكيك طريقة عمل عجينة البيتزا فوائد القرفه
Mate this is a very nice blog here. I wanted to comment & say that I enjoyed reading your posts & they are all very well written out. You make blogging look easy lol I’ll attemp to start a blog later today and I hope it’s half as good as your blog! Much success to you! Situs Judi Bola
oakley sunglasses outlet
michael kors handbags
michael kors handbags
coach outlet store online
cheap soccer jerseys
rolex watches for sale
true religion outlet
kate spade outlet
replica watches rolex
louis vuitton sito ufficiale
air max 2015
true religion jeans outlet
soccer shoes for sale
air max uk
mcm outlet online
michael kors outlet
abercrombie and fitch
louis vuitton borse
longchamp pliage pas cher
oakley sunglasses cheap
nike pas cher
tory burch handbags
pandora jewelry outlet
ray ban sunglasses
nike air max uk
Domino PokerPost a Comment
Download Domino QQ
Domino qq android
Domino qiu qiu
game domino qq
Books by Balkinization Bloggers
Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)
Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022)
Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022)
Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022)
Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).
Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021).
Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020)
Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020)
Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).
Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020)
Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020)
Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020)
Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019)
Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018)
Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)
Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)
Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010)
Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004)
The Information Society Project
Syllabi and Exams