Supreme Court's out-of-control spiral: Ideologues rewriting their own laws

It may be incremental, but make no mistake: This court is using absurd eccentricities to legislate from the bench

Published July 2, 2014 11:45AM (EDT)

Supreme Court Justices Clarence Thomas and Antonin Scalia                                  (AP/Pablo Martinez Monsivais/Jeff Malet Photography, collage by Salon)
Supreme Court Justices Clarence Thomas and Antonin Scalia (AP/Pablo Martinez Monsivais/Jeff Malet Photography, collage by Salon)

John Boehner wants to sue the president for pursuing executive authority without congressional input? He may want to file a copycat suit against the Supreme Court, who have executed plenty of extra-legislative rule making of their own.

On Monday, the court established multiple new distinctions in the law, inventing them largely to satisfy ideological whims. If any branch of government is engaging in de facto legislating and overstepping the bounds of authority, it’s the Roberts court.

As you probably know, the court ruled in the Hobby Lobby case that closely held corporations, where the top five shareholders control more than 50 percent of the company, must be given an accommodation for providing birth control in their employer-based insurance coverage, if they say it violates their religious beliefs. The decision, written by Justice Samuel Alito, explicitly argues companies like Hobby Lobby could be granted the same accommodation as churches and religious nonprofits, where the government effectively provides direct access to contraception coverage. (I didn’t know the court’s majority exhibited such strident support for single-payer healthcare!)

But the ruling also makes a number of novel assumptions. First of all, Alito found that, for the purposes of the Religious Freedom Restoration Act of 1993, corporations are not just people, but people with religious beliefs, granting them the right to free exercise of that religion, which the contraception mandate “substantially burdens.” But Alito clearly worried about a slippery slope, where suddenly religious corporations would ignore all sorts of laws by invoking their conscience. So he drew a completely arbitrary line.

In the opinion, Alito writes, “our decision in these cases is solely concerned with the contraception mandate.” He denies that any other insurance coverage mandate or unrelated employment-based regulation (like anti-discrimination laws) would have to go if it conflicted with the employer’s religious beliefs. He singles out vaccinations, for example, for their worth in stopping the spread of infectious diseases, and concludes that different arguments would result about the means of providing coverage if a religious corporate person objected.

As Kevin Drum notes, this is a very “Bush v. Gore” type of effort, where the majority, as they’re writing the ruling, warn everyone to never use it as precedent. Not only is this not how the law works, the randomness of the distinction makes no sense: Indeed, contraception plays a major role in stopping the spread of infectious diseases!

Justice Alito boiled down all religious sentiment into caring about whether women have too much unauthorized sex. He actually picks and chooses among religions, essentially saying that only beliefs about abortion matter in the religious liberty context. Furthermore, the ruling ignores science, by associating contraception with abortifacients.

Alito splits the baby again by arguing that the opinion only applies to “closely held corporations.” This may not be such a narrow distinction, since 90 percent of all businesses would qualify, and 52 percent of all employees work for them. But the capricious argument again is nonsensical; even the majority admits that, “no known understanding of the term ‘person’ includes some but not all corporations.” A public corporation could certainly sue for the same rights as the Hobby Lobbies of the world, and perhaps win, despite Alito’s claimed intentions.

The other big case decided Monday makes similarly illogical divisions. In Harris v. Quinn, the court ruled that at-home healthcare workers who objected to unions need not pay dues for the collective bargaining done on their behalf – so-called fair-share fees – which, in the case of home healthcare employees in Illinois, has helped them nearly double their salaries. A 1977 ruling known as Abood protects unions from this free-rider problem, saying that public employees who benefit from collective bargaining must contribute to the efforts that produced their contract.

Justice Alito, again writing for the majority, did not overturn Abood. He instead said his ruling only applies to the category of home healthcare workers called “partial public employees,” because they are simultaneously employees to their patients and the state. This effectively maintains that work in the home isn’t real work. But since Alito also added that Abood rested on “questionable foundations,” he appeared to signal future challenges to wipe out that settled law, only temporarily stopping short here.

This has become a familiar pattern for the Roberts court, using an initial ruling to indicate eventual overturning of precedent, and then employing a subsequent case to finish the job. It perhaps makes the court look more moderate and judicious, treading ground carefully to reach their desired end state. But since there’s no real distinction under the law between the initial “signal flare” ruling and the second, deeper one, it amounts to making up the rules as it suits the conservative majority, either for public relations purposes or to better carry out their agenda.

And that’s the real point. The Roberts court has a history, as shown in these recent cases, of basically legislating from the bench, of making idiosyncratic, agenda-driven choices about which parts of laws to uphold and which to strike down. Statutory interpretation is part of the court’s function, but the collapse of the legislative process has granted more power to the court to affect public policy, and they’ve grabbed that opportunity. In this conservative court’s hands, ideological signposts like more freedom for corporations and respect for right-wing legal arguments get preferential treatment, and the law gets twisted to serve those interests. This is hardly an impartial calling of balls and strikes, to paraphrase Chief Justice Roberts from his confirmation hearing.

While Democrats plan to respond to the Hobby Lobby ruling, a regulatory fix like providing the same accommodation for for-profit companies that they do for religious nonprofits could spur another legal challenge. And that brings us right back where we started: with an emboldened Supreme Court, ready to use whatever rationales at their disposal to upend the work of the other two governmental branches.

Dahlia Lithwick calls the Roberts court “the most hands-on hands-off court in America.” You could also call it passive-aggressive. They chip away at decades of established precedent inch by inch, using absurd eccentricities to protect their credibility. This hasn’t worked: a new Gallup poll shows confidence in the Supreme Court at a 40-year low. The public has noticed their lack of principle and willingness to shape the law to their desires of the moment. It’s a perfect example of judicial activism.

By David Dayen

David Dayen is a journalist who writes about economics and finance. He is the author of "Chain of Title: How Three Ordinary Americans Uncovered Wall Street’s Great Foreclosure Fraud," winner of the Studs and Ida Terkel Prize, and coauthor of the book "Fat Cat: The Steve Mnuchin Story." He is an investigative fellow with In These Times and contributes to the Intercept, the New Republic and the Los Angeles Times. His work has also appeared in the Nation, the American Prospect, Vice, the Huffington Post and more. He has been a guest on MSNBC, CNN, Bloomberg, Al Jazeera, CNBC, NPR and Pacifica Radio. He lives in Los Angeles.

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