Not Broccoli This Time

The Supreme Court doesn’t allow cameras in the room during oral arguments, and they’d never consider allowing those oral arguments – with the best legal minds in the country presenting differing views on momentous issues that will change all our lives, along with the withering questions from the Justices themselves, except for Clarence Thomas who hasn’t asked a single question in the last seven or eight years – to be televised. They say Thomas sort of smiles now and then, but we’ll never know – and you can’t tune in on the radio and follow along either. The people are not welcome to follow the people’s business as it’s being conducted – which might have something to do with upholding the dignity of the court, or with the notion that real-time access to what’s actually being said might be dangerous, enflaming the populace. They have no training in the law and thus have no idea what’s really going on. They might misunderstand everything and that makes this a public safety issue. This ultimate court did recently relent a bit and decide that these sessions could be recorded. That’s a bit of progress, but those audio tapes are released long after all the brilliant talk, along with the reams and reams of transcripts – conveniently long after all the dumb-as-dirt rubes have moved on to some other this-changes-everything news story or two, or three or four. That prevents each case from becoming a culture-wars circus over who believes what and who shouldn’t believe this or that or the other thing, or a political death-match where ambitious folks who love power want to get reelected, or want to toss out some bum who shouldn’t be reelected, and want to scream bloody murder about activist judges trying to fix social problems all on their own, or heartless judges in the pocket of big business. The court wants nothing to do with any of this. Only the law matters. Regarding the law, one must be dispassionate and ruthlessly logical.

An alternative there is that they don’t want to appear silly. In the oral arguments regarding the Affordable Care Act and the individual mandate, the mandate that everyone had to buy some kind of insurance or else pay a fine to defray the cost of putting them back together if they got hit by a bus, there was a lot of talk about broccoli – if the government can force all citizens to buy health insurance, can the government force everyone to eat broccoli? That was actually discussed with great solemnity. Had that been televised folks would have been giggling, or packing their bags for Canada. Justice Scalia also questioned why the government would force healthy young people to buy health insurance, because rational people buy what they need when they need it. You buy health insurance when you get sick, or get old and will get sick, and fire insurance when your house starts burning, and auto insurance when your drive into a wall again. Actually, he didn’t mention those last two, but they were, of course, implied. He didn’t seem to understand how all forms of insurance work, but he loved his argument – buy insurance only when you need it, just like everything else. Why would the government force you to do otherwise? No one ever really gets hit by a bus.

The whole thing was a clown show, reported second-hand, because America doesn’t do secret trials, as a rule, with a few exceptions carved out by the Patriot Act. There’s a spectators gallery – no cellphones or recording devices allowed – and a few reporters are allowed to watch too, without cameras or anything else. They can take notes, and they do – just like Charles Dickens did before he wrote all the novels. He was one of those press people who took those notes too, in an amazing special shorthand system he had developed just for himself, letting the public know, almost word for word, exactly what had been said at every sensational trial in London at the time, on the very day it was said. That was cool, and yes, we have an odd Dickensian situation here – but then everyone likes Dickens.

In the end all the overwrought silliness about broccoli came to nothing – six months later the Supreme Court ruled that Congress was within its rights to set up that individual mandate thing. That was just another form of taxation, and Congress in some ways exists to devise all sorts of taxes to fund what’s good for the country. Congress thought the Affordable Care Act was good for the country, perhaps foolishly, but the mechanism to fund it was fine, and that’s the issue the court had been presented. They addressed it, and perhaps it was best that none of the oral arguments in this matter were televised live to the nation. This wasn’t about Obamacare and Freedom and God, or about motherhood and apple pie and death panels and loose women being handed free birth-control pills and scarfing them down like candy. This was about defining what constitutes actual taxation, an issue for nerds. That the ruling saved one key element of the Affordable Care Act – perhaps the most important element – was a secondary effect. The right fumed – Justice John Roberts had betrayed them – but the specific mundane matter at hand had been settled.

Everyone took those oral arguments far too seriously, one reason not to broadcast them live to the nation, but here we go again, with Adam Liptak of the New York Times playing the part of Charles Dickens:

In a long and lively argument that touched on medical science and moral philosophy, the Supreme Court on Tuesday seemed ready to accept that at least some for-profit corporations may advance claims based on religious freedom.

Such a ruling would echo the court’s 2010 decision in Citizens United, which recognized free speech rights for corporations. But it would be only a first step in the court’s analysis of the lawfulness of a part of the Affordable Care Act that requires many employers to provide insurance coverage for contraception.

The justices seemed closely divided along ideological lines on other parts of the case. But Justice Anthony M. Kennedy, who probably holds the crucial vote, seemed frustrated with some of the Obama administration’s positions.

As for details, those would be these:

Justice Kennedy asked Solicitor General Donald B. Verrilli Jr., for instance, whether for-profit corporations “could be forced in principle to pay for abortions” and be powerless to object on religious grounds.

Mr. Verrilli said that was right, though he added that there was no such law.

Chief Justice John G. Roberts Jr. jumped in. “Flesh it out a little more,” he said. “There is no law on the books that does what?”

Squirming, Mr. Verrilli said, “That requires for-profit corporations to provide abortions.”

Chief Justice Roberts looked puzzled. “I thought that’s what we had before us,” he said.

What? Contraception is abortion? How did that come up? Follow the logic:

The two companies that challenged the law – Hobby Lobby, a chain of crafts stores, and Conestoga Wood Specialties, which makes furniture – say that some drugs and intrauterine devices are tantamount to abortion. Those claims are not generally accepted by scientists.

Well, there’s science, and then there’s religion. The idea is that the government ought to say one is just as important as the other, or something, and then, since the last time they had exhausted the topic of broccoli, they now turned to pork chops:

Justice Samuel A. Alito Jr. asked about news reports that “Denmark recently prohibited kosher and halal slaughter methods because they believe that they are inhumane.”

“Now suppose,” he said, “Congress enacted something like that here. What would a corporation that is a kosher or halal slaughterhouse do? They would have no recourse whatsoever. They couldn’t even get a day in court.”

Someone wasn’t happy with how one of the folks was looking at the Religious Freedom Restoration Act (let folks do what they want unless there’s a compelling public interest otherwise) that is being invoked here:

Justice Kagan said the companies’ interpretation of the 1993 law could transform the legal system.

“Your understanding of this law, your interpretation of it, would essentially subject the entire U.S. Code to the highest test in constitutional law,” she said. It would allow, she continued, employers to object on religious grounds to laws banning sexual discrimination and child labor and to laws requiring a minimum wage and family leave.

Justice Sotomayor asked similar questions about the implications of a ruling in favor of the companies for blood transfusions, vaccines and “products made of pork.”

Mr. Clement responded that there was no reason to fear “a parade of horribles,” and that religious objections could be handled case by case.

Justice Kagan said that would be unwieldy. “Everything would be piecemeal, and nothing would be uniform,” she said.

Yeah, but who needs uniform laws anyway? Actually no one made that argument, thank goodness.

Slate’s Dahlia Lithwick was also there, and saw this:

Hobby Lobby prevailed with its religious freedom claims in the appeals courts, and Conestoga lost. Both the Religious Freedom Restoration Act (RFRA) and the First Amendment claims were on the table Tuesday, but often in something of a jumble. The cases were consolidated and argued Tuesday morning by Solicitor General Don Verrilli and Paul Clement, who argued the ACA cases before the court almost two years ago, on a spring day in 2012, when it was not – as it was Tuesday – snowing.

One thing that was immediately clear Tuesday morning: There is finally a women’s team at the high court. For most of Clement’s 45-minute argument on behalf of the two religious objectors, the only questions come from the court’s three women, Sonia Sotomayor (the patch: tenacious, hardworking, and unshakable), Elena Kagan (the pill: unobtrusive yet sneakily effective), and Ruth Bader Ginsburg (IUD: deceptively small, monstrously potent, and lasts forever). Sotomayor and Kagan in particular pound Clement about the implications of using the exacting standard of scrutiny set forth under the RFRA to assess every corporate claim that a religious preference is burdened. “Is your claim limited to sensitive materials like contraceptives or does it include items like blood transfusion, vaccines?” asks Sotomayor. Clement replies that contraception is unlike transfusions and vaccines because it is “so religiously sensitive, so fraught with religious controversy.” Which is, I suspect, code for “sex.”

Kagan responds, “So one religious group could opt out of this and another religious group could opt out of that and nothing would be uniform.” And Ginsburg points out that the reason RFRA passed with such broad, bipartisan support was that Congress took out a proposed amendment that “would have enabled secular employers and insurance providers to deny coverage on the basis of religious beliefs or moral convictions.” Au contraire, says Clement. RFRA passed broadly because it afforded such broad protections.

Kagan’s not buying it…

And now to the other side:

Justice Samuel Alito (morning-after pill: always in possession of the power of perfect hindsight) interrupts to ask, “In all the years since RFRA has been on the books, has any of these claims involving minimum wage, for example, been brought and have they succeeded?” Kagan retorts that the reason such cases haven’t been brought is because this kind of test has never been approved by the courts. But, she adds, “If your argument were adopted and there was a strict scrutiny standard … then you would see religious objectors come out of the woodwork.” She throws in another concern: “And because you say you cannot test the sincerity of religion. I think a court would be… their hands would be bound when faced with all these challenges.”

Clement pivots to explain why corporations can be “persons” under the Dictionary Act and Sotomayor presses him on how “a corporation can exercise religion.” She asks, “Who determines the corporate religion? The majority of shareholders? The corporate officers? Is it 51 percent?”

Clement replies that “this line of questioning goes to a question of sincerity, and if some large corporation asserts some claim that’s going to save them lots of money, I would think that the government in those kind of cases is really going to resist the sincerity piece of the analysis.” Sotomayor replies that courts aren’t supposed to be in the business of testing religious sincerity in the first place.

This really was a circus:

Finally, Kennedy sets liberal hearts aflutter when he asks earnestly about the rights of employees and how the employer can “put the employee in a disadvantageous position.” He wonders: “The employee may not agree with these religious beliefs of the employer. Do the religious-beliefs just trump?” Kagan puts it more starkly: “Congress has given a statutory entitlement to women and that includes contraception. And when the employer says no, that woman is quite directly, quite tangibly harmed.”

Yeah, but if my religion, which I believe sincerely, demands that you be harmed, in spite of the law of the land, what about my religious freedom? No good can come of this:

The rights of millions of women to preventive health care and workplace equality elicit almost no sign of sympathy or solicitude from the right wing of the bench today – nor does the possibility that religious conscience objections may soon swallow up the civil rights laws protecting gay workers, women, and other minorities. Religious freedom trumps because we’re “only” talking about birth control.

As is usual for oral arguments, when it comes to asking questions, Justice Clarence Thomas goes with his own preferred method of abstinence.

Yeah, well, he hasn’t spoken a word in that room for many years now, but David Atkins, seeing contraception and abortion made the same thing in the oral arguments, is a bit enraged by the implications here:

Abortion has been set up in its own special category by conservative male legislators in this country. I am forced to support corporate welfare, Creationist schools and immoral wars with my tax dollars. But for some reason my conservative neighbor doesn’t have to support abortion rights with his tax dollars. And if Hobby Lobby gets their way, my conservative neighbor will be able to pay any potential employees differently based on whether they use birth control.

That’s not justice. If this country wants to move in that direction, then perhaps progressives nationally should reorganize into a “religion.” Sounds like a pretty cool perk: organize politically without the pesky IRS, and enshrine a bunch of political beliefs into a discriminatory legal code.

At Salon, Brian Beutler goes the other way:

Entrepreneurs, like the owners of Hobby Lobby, are provided innumerable privileges by the public that allow their businesses to thrive, and the price of those privileges is that they have to adhere to public laws and regulations. But vis-à-vis the contraception requirement in particular, the argument against a Supreme Court ruling in Hobby Lobby’s favor is actually about principle and unintended consequences in equal measure.

Hobby Lobby’s owners have many options if they genuinely don’t want to offer their employees health insurance that covers contraception. They could stop sponsoring insurance for their employees altogether, though this would require giving up one of those lucrative tax preferences, and possibly paying a steep tax penalty. They could lobby to eliminate the employer mandate or the contraception mandate by statute. They could ask Congress for a limited exemption that would apply to companies, on the condition that they advertise the missing benefit to prospective employees, or push for the creation of a much smaller, subordinate penalty for companies that provide all guaranteed benefits except for contraception. That’s just for starters.

But if they obtain an exemption from the court on religious grounds, even one drawn very narrowly, the unintended consequences could reach much further than the relatively narrow dispute over contraception, significantly altering the balance of competing liberties and private interests in secular spaces, and be very difficult to reverse.

They would be, in effect, declaring themselves a church, so they’re not really arguing that corporations are “people” at all – they’re religions in and of themselves, which is odd:

Conservatives generally write off this argument, or insist there is no slippery slope (in part, I think, because they share Hobby Lobby’s beliefs about contraception, but do not similarly sympathize with religious employers who might try to limit health benefits in more dramatic ways, or import religious views into their hiring or business practices). But I don’t think many of them have grappled with it forthrightly.

At Mother Jones, Kevin Drum tries to cut through the noise:

As with so many other recent cases, the law seems pretty clear to me. There’s no precedent for corporations having rights of religious freedom in the first place, and that alone seems like enough to toss the case out. But even if they do, the plaintiffs have to show that the contraception requirement imposes a “substantial burden” on them. Their argument is that if they don’t comply, they’ll get hit by substantial penalties. But that’s ridiculous. The question is whether complying with the law is a substantial burden. In other words, does insurance coverage that includes contraception cost them more than insurance coverage without it? The evidence on this is fuzzy, but it seems to be fuzzy only on the question of whether there’s any cost at all. Even if there is, it appears to be small. There’s simply no serious evidence that the cost of complying with the law is large in financial terms, and it’s obviously not large in operational terms since Hobby Lobby literally has to do nothing except continue buying insurance from the same carrier they’ve always bought it from.

So that’s where we stand. There’s no precedent in the past two centuries that gives corporations First Amendment religious freedom rights. And as near as I can tell, the contraception mandate imposes, at most, only a tiny burden on Hobby Lobby.

But none of that seems to matter. It doesn’t matter that I’m not a lawyer and might be wrong about all this. Others with the intellectual chops to know this stuff have made similar arguments in much more detail. And anyway, I thought the same thing about the original Obamacare case. It simply didn’t seem legally tenable. But it almost carried the day. A frail argument, invented a couple of years earlier and with exactly zero precedent behind it, came within a whisker of getting five votes on the Supreme Court.

This sure seems to be a similar case. The law doesn’t really matter. Four justices just don’t like the Obamacare mandate and will vote anywhere and at any time to strike it down. Four justices will vote to uphold the mandate. Anthony Kennedy will provide the swing vote.

It’s also possible, I suppose, that John Roberts will vote to uphold the mandate, simply on the principle that having upheld Obamacare once before on a slim technicality, he’s not going to litigate it over and over on increasingly trivial details.

So that’s it. The oral arguments don’t matter:

Everyone knows the outcome they want, and they tailor their opinions to produce those outcomes. Maybe that’s too cynical. I guess we’ll find out next June.

We will – and that means the real reason not to let Americans see or hear what happens in the court is that what happens doesn’t happen in the court at all. Maybe Clarence Thomas is right to learn back and stare at the ceiling and say nothing at all, year after year, while each modern Charles Dickens scribbles away and makes it all sound dramatic and important. But even Dickens tired of it. He turned to his novels, and in none of them will you find five Justices robed in black, discussing broccoli. Some things are just too implausible. We can wait until June anyway.

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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1 Response to Not Broccoli This Time

  1. Rick says:

    A few quick observations:

    What this ends up being all about is the old question discussed in “Man for All Seasons” — that is, when the two go head-to-head, which should rule supreme: (a) religion, or (b) government? In effect, both of them try to do the same thing, which is tell people what they are and are not allowed to do, so this conflict seems inevitable.

    It’s funny nobody seems to be framing it this way, but that may be because nobody really wants the argument to become about anything that fundamental, since the outcome, depending on which side wins, could inevitably fly in the face of our sacred principle of freedom of religion. Maybe it cuts too close to home. Maybe everybody thinks we have enough serious division in this country already, without inviting more.

    It should also be re-emphasized, for the sake of accuracy, that this particular fight is not really about contraception, per se — Hobby Lobby covers birth control, but just objects to paying for the kind of birth control that they consider de facto abortion.

    The implication of this point should be that this case at least partially swings on whether we should believe scientists, who don’t consider the IUD and morning-after pill to be abortion, or whether you let business owners to make this call themselves.


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