Tuesday, July 1, 2014

The Supremes Put Their Fist on the Scales

The Supremes Put Their Fist On The Scales

This past Monday was the last day of the term for the Supreme Court.  They now pack up their robes and gavels and head back to whatever places they cherish to clear their minds before the First Monday in October. 

As is their wont, they saved some of the choicest and most controversial opinions for the end.  Last week they did the nation a favor by insisting, in a unanimous decision, that the police do need a warrant to listen to cell-phone conversations.  SCOTUS decisively spoke on behalf of all citizens to uphold and vindicate among the most personal of liberties—the right to have a private conversation.

This week, however, in two highly controversial cases, Burwell vs. Hobby Lobby and Harris vs. Quinn, they reminded us that they are more than just defenders of the ordinary person or deciders of arcane Constitutional points.  They also pick winners and losers, and 5-4 has the same force of law as 9-0.  And those five remind us that, in the era of a highly conservative court majority, more often than not, it will be corporations that are accorded more respect than people in general and labor in specific, and the exercise of religion, both in the public and private sphere, will be given special status, even at the cost of other liberties. 

Harris vs. Quinn was seen by both business and labor as a potential “kill shot” on public sector unions, and, perhaps the gateway to taking down the entire organized labor workforce, both public and private.  The core issue was whether a public union could collect dues from workers that did not want to join or pay dues (often for political reasons) but nevertheless enjoyed the benefits of the collective bargaining agreements that the union had negotiated. The goal of business groups was two-fold.  First, if you could keep the union from collecting dues, more and more workers would simply refuse to pay them, hence eventually draining the union of resources.  In a comparatively short period, the union would then become financially moribund, and eventually they could be pushed aside.  This would (naturally) lead to lower wages and benefits, and more dangerous work conditions.  The second was purely political.  Labor has been a backbone of the Democratic Party for generations.  Cut off their funding, and you elect more Republicans who can, in turn, press for even more favorable legislation and preferences for their contributors. 

I don’t think it’s fair to call SCOTUS partisan, although there is no question that their facially non-discriminatory rulings may often disproportionately help one group over another.  Citizens United is an excellent example of this, in allowing corporations to spend enormous amounts of money to openly purchase candidates.  McCutcheon et al. v. Federal Election Commission extended Citizens United to people (an unintentional irony, I’m sure) and removed the cap individuals may spend in a given election.  The Court didn’t say “only Republicans can spend” they simply removed the barriers to spending.  The Koch brothers can spend, and George Soros can spend.  The fact that Republicans had more rich people and control of more money one could look at as purely coincidental.

But Harris was fundamentally different, in that it went further, and aimed to use the power of the courts to punish one party’s supporters.
Just to be clear, as I have a number of conservative friends and readers, I am not defending labor as pure and good.  They aren’t.  But collective bargaining unquestionably helps the working person, both in the public and private sector, and unions give them a voice in the legislative process.  If they didn’t, Republican Governors and State Legislators wouldn’t spend so much time trying to bust them on behalf of their business contributors and personal political ambitions.

That’s why Harris is so important, and why Justice Alito’s ultimate, fairly narrow, ruling, that the part-time workers who were not regular government employees were exempt from involuntary paying of dues, could be seen as (temporarily) dodging the bullet.  Rest assured, business will be back, but for now, the ruling only hamstrings and does not entirely eviscerate Labor.

Of course, few people were really paying attention to Harris, even though an “all in” ruling could have had immense political consequences. Hobby Lobby was the glamour girl of the day.  In Hobby Lobby, the deeply religious and conservative family that ran the company refused to pay for four separate types of contraception, in contravention of the ACA. 

What SCOTUS had to consider was whether a private for-profit company (not a church or religious order, which was already exempt upon request) could impose its moral and religious values on its employees through the selective withholding of benefits.  As in Harris, the fear was that SCOTUS would go beyond the question presented.  Would they take such an expansive view of private religious exercise in the business sector as to legalize all types of discriminatory behavior?

Whether the 5-4 decision did exactly that is open to interpretation.  Justice Ginsburg, in a closely reasoned dissent, said the barn door was wide open.  The actual opinion of the majority (Justice Alito, joined by Scalia, Thomas, Roberts, and Kennedy) is a little more circumspect.  Justice Alito relied heavily on the 1993 Religious Freedom Restoration Act (RFRA) and said that the challenged HHS (ACA) regulations substantially burden the exercise of religion.  He went on to say that ‘Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test.”

So, for Justice Alito, the regulatory scheme fails, and Hobby Lobby stores are free to express their owner’s religious opinions by restricting benefits to specific people (Hobby Lobby apparently has no problem with Viagra.)  Alito was sensitive to Ginsburg’s concerns.  He says it concerns only the contraception mandate. He goes on to add, “our holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

But, Alito’s disclaimers notwithstanding, there is considerable acumen in Ginsburg’s dissent, because Alito also makes clear that there is very little “free exercise” save racial discrimination that would unquestionably not survive a challenge.  He plays around with things like bans on immunizations, but merely says that different arguments (like public health) would have to be made by HHS.  And, by focusing on race only, he reminds us of what he’s not saying—discrimination against age, gender, gender identity, religion, etc. may be upheld.  If Hobby Lobby can refuse contraception coverage based on a “sincerely held belief” can it also make a policy of not hiring women of childbearing age, or requiring them to resign if they get pregnant?  Or, can it express a religious belief that a woman must be subservient to a man, and so therefor is ineligible for a managerial job?  The fact is that Justice Alito did not close the door on those things, and that is part of the reason why so many conservative and religious groups are exultant today.

For those who think I’m overstating, keep in mind two things.  The first is the bigger one: Justice Alito handed conservative and religious groups a huge shield to hide behind.  All they have to do is claim a sincerely held belief and it’s the employee who has to show otherwise, perhaps at the cost of her job.  The second is subtler, and can be seen in Justice Kennedy’s separate concurring opinion. He says,  “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.”  I don't think I have ever seen that before.  It tells me that Kennedy felt he had to join the main opinion, but also the need to reassure his colleague, Justice Ginsburg, who’s intellectual arguments he acknowledges. He may be saying to her "that's not what I mean."

Justice Kennedy’s uncommon grace, however, has no precedential value.  It’s Justice Alito’s opinion that is the Opinion of the Court. 

And it’s Alito’s fist that is on the scales of justice tonight.  Good for business, good for those who profit politically and economically from weakening labor, and good for the faithful who wish to impose their beliefs on others.

Let freedom ring? Not exactly the cell phone case.

July 1, 2014

Michael Liss

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