What Do You Want Judges to Do?

The outrage du jour is over the Supreme Court’s decision in the Hobby Lobby case which James Taranto summarizes here:

The majority, in a decision by Justice Samuel Alito held that Hobby Lobby and two other companies need not comply with the ObamaCare birth-control mandate, to which their owners object on religious grounds.

The plaintiffs in these cases did not claim their First Amendment rights had been violated; such a claim, as we noted in March, would almost certainly have been precluded by the 1990 case of Employment Division v. Smith. But Congress responded to that case by enacting RFRA, which mandates the courts apply “strict scrutiny” to government policies as enforced against litigants who object on religious grounds.

In order to meet strict scrutiny, the government must show both that the policy is justified by a “compelling” interest and that it is the “least restrictive means” of furthering that interest. At least five justices seemed to agree that the interest in assuring cost-free access to the abortifacient contraceptives in question is “compelling”: the four dissenters and Justice Anthony Kennedy, who in a concurring opinion wrote: “It is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation at issue here furthers a legitimate and compelling interest in the health of female employees.”

In their acerbic response the editors of the New York Times get the law and the facts wrong from the first sentence:

The Supreme Court’s deeply dismaying decision on Monday in the Hobby Lobby case swept aside accepted principles of corporate law and religious liberty to grant owners of closely held, for-profit companies an unprecedented right to impose their religious views on employees.

As I mentioned when the case was first accepted by the Court, that closely-held private corporations serve as alter egos of their owners is the prevailing view in corporate law and this case is only controversial in its subject matter rather than its outcome.

I have read the majority decision and Justice Ruth Bader Ginsburg’s dissent. If I understand Justice Ginsburg’s position, it hinges on corporations not being mentioned in the Religious Freedom Restoration Act of 1993 (which I’ve also read). Justice Ginsburg’s view strikes me as novel. If it were applied, say, to the First Amendment, it would mean that freedom of the press does not apply to the New York Times Company, the Tribune Company, or News Corp., all for-profit corporations. I think that RFRA, enacted by a Democratic House and Senate and signed into law by a Democratic president, means what its plain language says: it’s a limitation on the power of legislatures and executives to craft laws or regulations that limit the free exercise of religion without a compelling interest and only then by the least restrictive means. Since there are plenty of approaches the Obama Administration could exercise to achieve the same goal including compelling insurance companies to include contraceptives at no additional charge, clearly compelling employers is not the least restrictive means.

In my view any ire should be directed, as usual, against the Congress rather than against the Court and the remedy that foes of the Hobby Lobby decision should be seeking should be revisions in RFRA. The editors of the Washington Post come closer to that stance:

If this is the sort of balancing that the Supreme Court will conduct, Congress should change the law. The Constitution generally does not require religious exceptions to generally applicable laws. The ruling relied on the Religious Freedom Restoration Act, a statute that does not mention corporations and that lawmakers could easily narrow. They should not only guarantee contraception coverage but also repair the federal government’s ability to provide for wholly legitimate common goods such as public health and marketplace regulation.

Eugene Volokh defends the decision:

Likewise, the Hobby Lobby owners drew a line: Providing health insurance — including through their closely held corporation — that covers what they see as tools for homicide is sinful complicity with sin. Providing salaries that employees may use to buy the same tools or hiring employees who use those tools is not.

Many of us might draw the line elsewhere (even if we agreed with the judgment that the potentially implantation-preventing contraceptives are sinful). But it is for the owners of Hobby Lobby to draw the line and not for the courts to second-guess it. Perhaps there is a compelling interest that justifies the substantial burden that the law imposes on the owners — more on that later — but courts cannot say that the burden is insubstantial simply because they think the complicity is too attenuated.

And this position should look especially sensible, I think, given how wide an array of judgments our own American legal system has on the subject of complicity.

As might be expected the bitter argument in the blogosphere has revolved around the policy rather than the law. I don’t want to get into the policy here. The deeper questions are about the nature of law and what we expect judges to do.

If laws are the minimum standards of acceptable behavior and limited in their scope and applicability to their plain language, precedent, and the common law, then we should want judges who will try to discern that. If, on the other hand, laws are blank canvases on which our policy preferences are to be written, we want judges who will pursue those preferences zealously and are able to mask their advocacy as justicion.

The question that underpins the deeper questions is how can people with different beliefs, values, and preferences live together? There are two competing strategies. Either we can learn tolerance and forbearance or we can use compulsion.

47 comments… add one
  • sam Link

    As might be expected the bitter argument in the blogosphere has revolved around the policy rather than the law. I don’t want to get into the policy here. The deeper questions are about the nature of law and what we expect judges to do.

    Yes, of course. On the other hand, all that does depend on how one understands just what was going on in the Hobby Lobby decision. Joey Fishkin’s take at Balkinzation ought to be considered:

    [T]his case was never really about health policy. It isn’t really even about the ACA, except peripherally. This case is about the politics of recognition: it is about recognizing conservative religious claims that (a) contraceptives are different from other forms of health care (an issue the Court somewhat finesses by suggesting that immunizations and so on “may be supported by different interests”), (b) religious people’s “conscience” deserves great deference and priority in the public sphere, certainly a higher symbolic priority than women’s health, and (c) perhaps most specifically on point, that religion is not something people do on their own time, in their own churches, but rather, is a way that apparently even large for-profit businesses may conduct their affairs—and if they choose to do so, society must find ways to accommodate their “full participation in the economic life of the Nation” (p.46). None of these—neither (a), (b), nor (c)—is really a legal claim. These are political claims. But this is high politics, not low politics. These are claims about how our nation is constituted and the place of religion in it.

    This explains the oddest part of the Court’s decision.

    The majority and Justice Kennedy are both deeply enamored of HHS’ little two-step, as described above, for providing contraceptive coverage while affirming (a), (b), and (c). It’s working great, say the majority. HHS has already implemented it successfully! So why, then, does the majority also leave the door ajar, as Justice Ginsburg pointedly notes in dissent (p.2 n.1), to a possible future challenge under RFRA to this very accommodation? The answer is: this Court wants to deliver a major symbolic high-politics victory to religious conservatives, along the lines the previous paragraph discusses—and it wants to hold open the possibility of more such victories in the future. And yet, the Court has found a way to do so without actually disrupting the ACA’s statutory scheme. Health policy is not what this case turns out to be about.

  • The question that’s ignored in the quotation you’ve produced above is how do you craft a legal path that supports the minority’s (and the Obama Administration’s) position given RFRA? Justice Ginsburg does not do so. She simply ignores RFRA’s plain language.

    IMO Joey Fishkin is hyperventilating. If there’s a debate over the role of religion in our society, it’s a debate that Congress has already decided and if you want that debate revisited, you should take it back to Congress.

    For decades the Congress has been using the Supreme Court as a means of avoiding its responsibilities. Any problem here is the Congress’s fault and it’s up to the Congress to correct it.

  • PD Shaw Link

    I think there is a language issue between how people speak in their everyday life and the specialized language that is used in law. “Person” is typically used in the law as the broadest term of inclusion, covering both natural and artificial persons. For example, the operative language of the Clean Water Act is that “no person shall . . .” discharge pollutants into the environment without a permit. The definition section of that Act clarifies that “person” includes everybody (individuals, corporations, partnerships, associations, units of government, etc.). In yesterday’s case they relied on the definitions in the Dictionary Act, to reach the same outcome. (The Dictionary Act is also the place where we learn that when laws uses the word “he,” it also means “she.” )

    So, basically there is a draftsmanship issue here; either Congress used “person” because it wanted the most inclusive reach, or it wanted it to apply to only natural persons, but failed to draft the law correctly, or they didn’t think of the matter at all. Judges do not have very good tools to divine which is the case.

  • As is the case now in 1993 the overwhelming majority of members of Congress were lawyers. If that’s not how they understood the language of the statute, it’s remarkable negligence.

    And then, of course, even if you accept Justice Ginsburg’s evasion, you’re left with the problem that the Obama Administration is choosing among persons.

    For convenience, a few links.

    1 U.S. Code § 1

  • ... Link

    As you like to say, just because they’re lawyers doesn’t mean they’re competent lawyers.

    And Fisken’s take is ridiculous in it’s hyperbole.

  • PD Shaw Link

    @Dave, I don’t if I mentioned it before, but I don’t think that “alter ego” is the right word there. To me the issue is sometimes called the “participation” doctrine. Corporate individuals are not immune from their wrongdoing in which they actively participated, even if its done on behalf of the corporation. The corporation that decides to dump waste into the river without a permit is going to be liable, as well as the officer that directed the employees to do it and the employees who did the deed. (In this example, the President or any shareholders don’t have any personal liability because they are not active participants, but one could easily see that the smaller the corporation, the more likely the President is the officer directing or committing the wrong personally)

    I think “alter ego” analysis is a doctrine used by courts in equity to ignore the corporate form when the individual is ignoring it by his actions. Best example, is the small corporation that doesn’t keep separate books, but deposits “corporate” money into his personal bank account. Closely held corporations are not alter egos of the controlling interests, but they need to be more careful.

    My main point though is corporate individuals are not shielded from their wrongdoing, and are expected to act morally by acting with due care to avoid violating laws or injuring others or their property. (Contracts are different, breaching a contract is not a “wrong”)

  • Modulo Myself Link

    If I dress up in a costume and am killed fighting crime both I and my alter ego are dead.

    Corporations are basically created to make sure that mutual death does not happen.

    So saying that closely-held corporations are alter egos of their owners doesn’t seem to be correct.

  • jan Link

    Dave, That was a provocative analysis of yesterday’s SCOTUS decision. It’s scope provided a variety of political interpretations to process.

  • PD Shaw Link

    Justices Breyer and Kagan did not join in the part of Ginsburg’s opinion, explaining how “person” = individuals + not-for-profits. I think its likely that it is weak. It may also be that they recognize that there are going to be future cases in which the scope of “person” is at issue, and they don’t want to have supported such a difficult construction.

  • TastyBits Link

    @PD Shaw

    And you wonder why everybody hates lawyers. I understand there are reasons for the nuances, but it can get tedious for the non-wonk.

    One thing that drives me insane is non-legal people discussing the law, or a lawyer from one state discussing another state’s laws. Even better is another country’s laws.

  • PD Shaw Link

    @Tastybits, to your list, I think one difficulty is that lawyers are not allowed to express an expertise in a given area, but as a practical matter most lawyers have areas of competency. I assume most legislators have legal experience primarily from prosecutor’s offices, or some other governmental work that does not entail much if any drafting.

  • TastyBits Link

    @PD Shaw

    I meant the talking heads, pundits, and commentators.

  • Modulo Myself Link

    The same people want freedom for their beliefs were quite happy to argue that their religious view of marriage trumped the rights of gays. They’re still arguing it, actually. I mean if you want to find a despicable person, find a Christian who thinks they should be allowed not to follow a governmental regulation about health care because of their beliefs but believes their laws about marriage have to be followed, because nobody can be married unless they say so.

    Even reading a bunch of the commentary from supposedly-sensible moderates is puzzling. Damon Linker basically argues that we shouldn’t worry about where this ruling leads, because sex is far deeper a part of Christian doctrine than race. Regardless if he’s right, he might as well be saying that the Supreme Court authorizes religious freedom for people who follow Church doctrine, but Church heretics receive nothing. So now the government is in the business of telling religious people what the true deal is with religion? It kind of puts that freedom thing in new light, doesn’t it?

  • Modulo Myself Link

    Actually, what’s even more bizarre about Linker’s position is that I’m willing to guess that he would find it intolerable to have a court decide that Hobby Lobby or any Catholic group has no right to their claim because science says they’re wrong. Basically, he’s willing to give the US legal system stronger powers over the validity of religious doctrine than in administering the scientific validity of a religious claim.

    This is completely insane.

  • PD Shaw Link

    MM: One of the things I think Linker alludes to, but does not develop is that the “religious liberty” value originated from liberal Supreme Court Justices, like Brennan and Thurgood Marshall, to protect religious minorities, like Seventh Day Adventists (not working on Saturdays) or the Amish (public schools). A few years ago, a unanimous SCOTUS ruled that a Native American church could use an illegal drug in religious ceremonies.

    The history, which is odd and long, is largely full of religious minorities of little consequence. I think part of the issue liberals might have is that we are probably no longer talking about minority religious groups or views, but perhaps majority views of dominant faiths. The other is that hopes are still fostered that the ACA will evolve into a single-payor system, with perhaps severe consequences on how such a system would work if contraception and abortion are too controversial to be included.

  • TastyBits Link

    … Either we can learn tolerance and forbearance or we can use compulsion.

    You do not get it. The left believes that they won. Period.

    These things are not supposed to be happening: Hobby Lobby winning, Republican House not falling in line, stimulus package not working, economy not working, Obamacare not being loved, Putin not rolling over, al-Qaeda staying dead, terrorists expanding, temperatures refuse to respond to CO2 rising, Russia and China not playing by the 21st century rules.

    The world as they understand is is very limited. Anything pre-WW2 is ancient history. They truly believe that the past is obsolete. Not only is nothing to be gained from studying history, but it will lead to wrongful thinking about the future.

    Unfortunately, they are about to learn how wrong they are. Kiddies fasten your seat belts because you ain’t seen nothin’ yet. Get ready. There is a whole lotta bad news in the pipeline.

  • jan Link

    ” The left believes that they won. Period.”

    I see it more that extreme liberals (aka “left” & social progressives) see their ideals and political goals as being 100% correct. Therefore they express judgmental attitudes for not only non-compliant moderates but also the far right, social conservatives for differing principles and POVs they value — calling them cretins, or having stone age mentalities for being so “backwards.”.

    Such harshness from the liberal base, though, only reflects Obama’s own words when he derides his GOP counterparts, as he calls for their cooperation in backing his policies. It’s like an angry child who repeatedly misses curfew, doesn’t own his mistakes, nor meet commitments made to others, and then blames everyone else for everything going wrong, in a blustering, heated fashion.

  • jan Link

    ” There is a whole lotta bad news in the pipeline.”

    Is this what you’re talking about, Tasty?

    Another Financial Meltdown on the Horizon?

    When the BIS chastises policymakers for masking structural deficiencies and long-run misallocations of economic resources by resorting to the quick monetary fixes of quantitative easing and zero-interest rates — well, it should get their attention. And when the report suggests that short-term policy responses to the last crisis may be “creating a bigger one down the road,” the red lights should start flashing.

  • TastyBits Link


    It is not ideology that drives them. It is a mindset that manifests itself through an ideology. (This is not classical liberalism.)

    Find the pre-modern heros. There are none. Marx is Marx in name only. Anything pre-modern has been reconstructed for a post-modern age.

    They are like angry children throwing a temper tantrum. If I said, “let the f*cker burn down” would that make me a bad person? It would be interesting to learn how long a 21st century man survives in a 19th century world.

  • jan Link

    It would be interesting to learn how long a 21st century man survives in a 19th century world.

    If they were a ‘Jack Bauer’ type, they would survive, until they met another Jack Bauer type.

  • TastyBits Link


    The dollar is in a bubble. Banks are still insolvent, and the Fed is playing games to keep them afloat. This might work as a bridge, but they keep increasing the credit supply by leveraging the money supply they keep increasing.

    The US has a problem. The EU has a problem. China has a problem. Russia has a problem. Various other countries have problems. To date, everybody has been relying on each other to pass off the debt in a global game of hot potato. If the game stops, …

    Russia is being kicked out of the game by the US, but Europe is not going along. The US is sanctioning one French bank as retaliation. China is causing trouble, and there is no telling where that is going. The ME is on fire.

    Somebody is not getting paid, and you never mess with a person’s money. It ain’t gonna end well.

  • michael reynolds Link

    Jan and Tasty:

    Well, we only call them cretins because they’re cretins.

    The basic political weakness of liberals arises from optimism. Liberals are great believers in education. They tend to think the world’s problems would be solved if only people were educated.

    I, on the other hand, think the world’s problems arise from stupidity and narrow self-interest. Ignorance (the preferred liberal diagnosis) can be treated; stupidity cannot. Particularly so when the stupidity is deliberately adopted as a consequence of religion or ideology or tribalism. And selfishness, well, that’s humans isn’t it?

    Are liberals better and more evolved? Obviously. We’ve been right about everything from religious liberty to slavery to women’s suffrage to civil rights to universal education to progressive taxation to gay marriage. The one place where liberals are consistently wrong is in under-estimating the staying power of stupidity and selfishness.

    We need to finally grasp that some people will simply reject education and cling to superstition and ignorance, filling their tiny little heads with the rantings of radio hucksters and professional liars who tell them what they want to hear.

    Right, Jan?

  • steve Link

    IANAL. That said, I was surprised that this was not a First Amendment case. If Hobby Lobby is ok because we already find ways to cover people working for expressly religious groups (hope I got that right) that seems just a bit problematic. We know that the workaround for religious groups is kinda weird. Paying for contraceptives usually doesn’t increase the costs of the insurance as those costs are offset by fewer delivery costs. (There is a similar odd arrangement in the ACA for abortion.) Letting the insurance cover contraceptives since it doesnt cost them anything doesnt seem especially restrictive. Meh.

    What I do find hard to understand is that Hobby Lobby supposedly offered to increase the salaries or those having to buy their own pills, so that those employees would come out financially neutral. I am not sure why that was not sufficient. I also find it pretty weird on the part of Hobby Lobby. Kind of like the old scientists saying they just built the rockets and had no responsibility for where they came down.


  • TastyBits Link

    @michael reynolds

    The issues you listed are classical liberal causes that promote liberty, and under general welfare, you could add SS, Medicare, unemployment, and Medicaid. The purpose of these programs is to provide a safety net. Even though they often are, they are not intended to be intrusive.

    Progressive programs are intended to be intrusive, and they are intended to modify behavior. Obamacare is not intended to ensure everybody obtain insurance. It is intended to modify behavior to ensure everybody become healthy. This is not liberty.

    It is not an ideology. It is a mindset. It infests the right also. They believe that the Cold War results can be had for free. There is no need to actually spend the money building a military to accomplish their goals. The ghost of President Reagan will protect us all.

    The right believes that money is created out of thin air, but it is from a different source than the left. The right looks to Wall Street. Any dealer can tell you the hustle. You catch them on the come back.

    I would go into free trade, but I am getting tired.

  • PD Shaw Link

    @steve, part of the issue is that Hobby Lobby self-insures, so there is not a separate insurance company to figure out a work-around. And self-insurers aren’t required to provide maternity care, though I wouldn’t be surprised if Hobby Lobby does.

  • steve Link

    PD- Thanks. Didnt know that. It is my understanding that they provide maternity care, so it probably means they could have provided contraceptives at no extra cost to their plan.

    “. Obamacare is not intended to ensure everybody obtain insurance. It is intended to modify behavior to ensure everybody become healthy.”

    Where do people come up with such weird ideas?


  • PD- Thanks. Didnt know that. It is my understanding that they provide maternity care, so it probably means they could have provided contraceptives at no extra cost to their plan.

    Of course, the issue for HL isn’t cost. They’re not kidding. They really do have religious objections.

  • Zachriel Link

    steve: That said, I was surprised that this was not a First Amendment case.

    They would lose under the First Amendment.

    Having a rule that anyone could object to any law for religious reasons “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind—ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races.” — Scalia, Employment Division v. Smith.

  • TastyBits Link


    Where do people come up with such weird ideas?

    Most of my weird ideas become “nobody could have seen it coming” ideas. I have been on a winning streak, but I am bound to come up with a loser at some point.

    What is interesting is that when I am skewering the other side, none of my ideas are weird. I have been after @jan and the right over foreign policy for some time. I am sure you could find one of my ideas to be wacky.

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