First-Reaction Thoughts About Hobby Lobby and Harris v. Quinn
I haven’t read the opinions, concurrence, or dissents in either Hobby Lobby or Harris v. Quinn, so these comments are based on news summaries and quick commentaries by others. But the biggest surprise in Hobby Lobby, I think, is the express approval, in the opinion and in Kennedy’s concurrence, of HHS’s on-the-fly setup devised in (I think) 2012 as a workaround to allow nonprofit religious organizations (e.g., Catholic colleges) to avoid directly providing the insurance coverage while still enabling the employees to receive the coverage.
The 5-4 outcome of the case apparently relied on this; it was not dictum. Kennedy’ concurrence makes that clear. (Which is itself a surprise, given Kennedy’s virulent dissent two years ago to Roberts’ opinion upholding much of the ACA itself.)
This is really important, not just as it applies to the contraception issue but also because the HHS-devised workaround has, of course, been attacked by the right as exceeding the authority of the ACA. As have the other several HHS-promulgated tweaks to the substance of the statute and to its implementation (for example, delays in requiring certain mandates). The Hobby Lobby opinion effectively accepts as legally permissible these substantive and timing HHS-created modifications by HHS to the ACA.
The other thing that strikes me is that, although one commentator writing a few minutes after the release of the opinion thinks otherwise, the opinion does, I think, open the door to diminished corporate-veil protections.
The opinion did not address the First Amendment free-exercise-of-religion clause. Instead, it interpreted a statute, the Religious Freedom Restoration ACT (RFRA) as protecting closely held for-profit corporations. The statute provides that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” The opinion holds that corporations are “persons” within the meaning of the statute.
The commentator–one of the SCOTUSblog folks writing on their live blog as the Court was in session this morning; I can’t remember who, though–pointed out in answer to a question that the opinion interprets a federal statute and that corporate-structure/corporate-veil statutes are state statutes. The opinion doesn’t alter those state statutes.
But it does, I would think, enable and even invite other incursions through the corporate veil, via federal or state statute or state-court interpretation of rights of potential litigants.
The opinion also apparently tacitly acknowledges, without actually deciding, that First Amendment rights of corporations are solely derivative of their owners’ First Amendment rights, and therefore cannot be treated as though delegated to the personal choices of the CEO. Thus, the ruling in Hobby Lobby is limited to very-closely-held for-profit corporations. This obviously is a concession to the dismay expressed by many, many people (certainly myself included, here at AB) at Citizens United’s cavalier delegation of individual publicly-held-corporate shareholders’ First Amendment speech rights to the corporation’s CEO for purposes of donating corporate money to political campaigns. Corporate shareholders, including pension funds, are now entitled to sue to block corporate political donations.
Although Alito wrote the majority opinion in both Hobby Lobby and the other case decided today, Harris v. Quinn, neither opinion reflects what he had hoped for. Harris, like Hobby Lobby, was decided on as narrow grounds as possible–on grounds that avoid constitutional interpretation and that are decided on other grounds limited in scope to, really, the specific facts in the case.
In my post yesterday on Harris, I suggested the possibility (albeit remote, I thought) that Harris could follow somewhat in the footsteps of an opinion in a case called Bond v. United States, decided on June 2.
The majority voted to hear Bond, intending to use it to make a sweeping Conservative-Movement-cause constitutional pronouncement and overrule a longstanding Supreme Court precedent. But instead, somewhere along the way after the case was argued and John Roberts had assigned himself to write the opinion, one of the five Republicans–I suspect that it was Roberts himself–had a change of heart. Roberts’s opinion has vestiges of the original draft, but decides the case on other (liberal, actually) grounds. What was intended initially as a major federalism (i.e., states’ rights to violate federal constitutional rights that the political right don’t care about) ruling based upon the alleged structure of the Constitution ended up as a blow to rampant abuse of prosecutorial discretion. Hooray.
In Harris, the Conservative-movement cause was not neo-federalism but instead the decimation of labor unions, especially of public-employee ones. The mechanism was to be the First Amendment speech clause, and Alito, who openly coveted the assignment to write the opinion–earlier, in another case, he said he wanted to overrule a 1977 Court opinion, Abood v. Detroit Board of Education, that was the foundation of the relevant aspect of current labor law–had indicated at the argument in January that he thinks the very existence of public-employee unions violate the First Amendment.
But the best-laid plans went somewhat awry again, and this time apparently it was Scalia (of all people) who threw the first wrench. Scalia reportedly made it known at the argument that the First Amendment speech challenge to the “agency fee” concept in union representation of non-union employees in “union shops” just doesn’t make sense, in his opinion, even if the union is a public-employee one.
My guess is that Scalia originally agreed only with the bare outcome, but on the limited grounds on which Alito’s opinion ultimately rests: that under the specific Illinois law at issue, the 1977 opinion that approved the “agency fees” didn’t apply to the employees at issue in Harris–home healthcare employees paid by the state’s Medicaid system–because they are employees partially of the state and partially of the customer. My guess also is that somewhere along the way, Alito lost another vote for what was to be his four-justice plurality opinion; one of the four jumped ship and joined Scalia. Alito then was compelled to effectively adopt Scalia’s concurrence as the bottom line–the ruling–in his opinion, but was not compelled to remove the reams of dictum from it that Kagan, in her dissent reportedly mocks at length.*
If my speculation is correct, the substance of the Harris opinion bearing Alito’s name was dictated, literally, by Scalia. In any event, this wasn’t quite the day of victory for Alito & Friends that they had envisioned. Really, it wasn’t even close to that.
—-
*Typo in sentence corrected, 7/1 at 1:34 p.m.
UPDATE: Most of what I wrote in this post based on the early summaries and analyses of the opinions, but before I had read the opinions themselves, holds up surprisingly well, I think. I don’t think you can read the opinion in Harris without recognizing the real likelihood that most of Alito’s opinion was written as one overturning Abood, maybe as a plurality or maybe as a majority opinion, and then one or two of the justices who had signed on to overturning Abood changed his mind.
I hope to write an update post later today, though. 7/1 at 1:37 p.m.
I am in general agreement with your thoughts about Hobby Lobby and Harris v. Quinn, but cannot fathom why you go on about Bond as you do.
Beverly said: The majority voted to hear Bond, intending to use it to make a sweeping Conservative-Movement-cause constitutional pronouncement and overrule a longstanding Supreme Court precedent.
But as in our earlier back and forth on this there was no need to strike down Holland. Perhaps you had another case in mind?. The Court could have simply said that the treaty power extends as far as Missouri v Holland, but no further, while extending Reid v. Covert to say that the Treaty clause does not empower the Pres. and Senate to violate structural principles any more than it allows them to violate enumerated protections.
Beverly said: What was intended initially as a major federalism (i.e., states’ rights to violate federal constitutional rights that the political right don’t care about) ruling based upon the alleged structure of the Constitution ended up as a blow to rampant abuse of prosecutorial discretion. Hooray.
1) The case was Bond v US, not Pennsylvania v. US.
2) It was a person’s liberty that was at stake
3) From your comments it seems that had Congress said the magic words you would be on board with making a federal case out of a minor incident.
If Congress were to pass an amendment to the Chemical Weapons Convention Implementation Act stating, in language that even the CJ could not ignore, that Congress does intend the act to reach even minor incidents such as in Bond, would you support the constitutionality of the act? And why do you think upholding the act would be a liberal position?
Michael, the sad, outrageous truth about Bond is that the Court never, ever would have agreed to hear the case had Carol Bond’s lawyers simply argued the grounds that she ultimately won on: outrageous use of the Chemical Weapons Convention Implementation Act by a prosecutor with virtually unlimited prosecutorial discretion. The Court heard her case only because her lawyers made a neo-federalist states’-rights argument.
As I said earlier, the Court should have agreed to hear her case on the grounds that her own rights were violated by a ridiculous overreaching interpretation of a statute whose purpose had nothing to do with the facts in her case.
The current rightwing crowd on the Court won’t deign to hear cases at the behest of criminal defendants unless the criminal defendant can squeeze his or her grounds into one of the Reagan-era Legal Movement obsessions. It’s outrageous. In Bond’s case, she ultimately won on other grounds, not on the Movement-obsession grounds–grounds that the current Court doesn’t care enough about to have agreed to decide, absent the federalism angle presented in the cert. petition.
And power mad prosecutors were bolstered by power mad statists who were quite happy to push the “treaties trump the constitution” thingy until it was obvious that Bond was about the worst case anyone who held that view could possibly chose to make their stand.
Note that the statists would have left Ms Bond to rot had it come to that, rather than finding that the president and the senate do not have the power to alter the constitutional structure via the treaty power. That is the sickness that you are overlooking.
The Bond case reminded me most of Raich (though Scalia sided with the statists there) in terms of the politics of the case, as the proponents of unbridled federal power could not bring themselves to criticize the remarkable power grab, despite the blatant imposition on individual liberty. Thomas’s dissent in Raich should have embarassed self respecting liberals, but there is no shame when it comes to grabbing power.
The old saw about one’s right to swing one’s fist ends at the tip of thy neighbor’s nose is in serious need of revision -the new liberal version is that one’s right to swing one’s fist ends when Congress says it does., and if Congress does not act fast enough, then it ends when the president says it does.
The ruling in Hobby Lobby is not limited to closely held corporations, partnerships, or sole proprietorships. The applicability to corporations generally is left open as Justice Ginsburg points out with concern. The result of the ruling is extremely ironic in that individuals are allowed to incorporate their businesses and escape personal liability for their acts through those corporations but are allowed to enforce their personal religious beliefs on their employees.
Also the scope of the ruling is left open as to other religious objections to general laws. Justice Alito says one should not conclude that it will extend to such things as blood transfusions and vaccinations but also does not foreclose that possible eventuality.
Yeah, Jack. Ironic, indeed. Although we’ll see how long it takes before that itself becomes a big political issue–i.e., whether the Dems have the guts to point this out and make it one.
I just added an update to the post, saying that what I wrote yesterday based on early summaries and analyses, but before I’d read the opinions, holds up surprisingly well. I don’t think you can read the opinion in Harris without recognizing the real likelihood that most of Alito’s opinion was written as one overturning Abood, maybe as a plurality or maybe as a majority opinion, and then one or two of the justices who had signed on to overturning Abood changed his mind.
I’m not as concerned as most people are about expanding Hobby Lobby to other religious objections and to other medical procedures, though, because I think Kennedy’s purpose in writing his concurrence was to tacitly say that he won’t be the fifth vote for doing that.
With this court, Bev, it’s probably wise to be concerned about any eventuality. Kennedy is free, of course, in the future to say “never mind” if confronted with his concurrence.
People yesterday (including the Tribune in this morning’s lead editorial) were reassuring objectors that the ruling only applied to the four contraceptive methods objected to by the parties and not all methods. The court in a number of rulings this morning made it clear that it applies to all contraceptive methods perhaps anticipating pending cases.
The Tribune’s editorial writer must think that incorporated persons limit their exercise of religious freedom to the disapproval of the four contraception methods that violate Hobby Lobby’s and Conestoga’s free exercise of religion, Jack. The writer must be a genius.