John Roberts Introduces a New Favorite Tactic This Term: Sleights-of-Hand Analogies

Roberts suggested that he believes Hobby Lobby and Conestoga Wood can bring forth claims of religious freedom, saying courts have held that “corporations can bring racial discrimination claims as corporations” and that “those cases involve construction of the term ‘person.’”

– John Roberts Offers Conservatives A Way Out Of Birth Control Dilemma, Sahil Kapur, TPM, Mar. 26

About which I wrote a post here the next day titled: “Turns out Alito isn’t the only justice who conflates the Securities Exchange Act with state-law corporate-structure statutes.  Roberts does, too!  (Unless, that is, racial-minority-owned corporations are denied access to restaurants and hotels when traveling.  Or something.)”

Yep. Unless, that is, racial-minority-owned corporations are denied access to restaurants and hotels when traveling.  Or something.

What I was referring to was this, from that post of  Kapur’s about the argument on Mar. 26 in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius, the two consolidated cases challenging as violative of the First Amendment’s free exercise clause the ACA’s employer contraceptive-coverage mandate, in which a threshold issue is whether corporations can exercise religion and therefore are “persons” within the meaning of the Religious Freedom Restoration Act:

After observing that “eight courts of appeals, every court of appeal to have looked at the situation have held that corporations can bring racial discrimination claims as corporations,” the Chief Justice asked:

Now, does the government have a position on whether corporations have a race?

[U.S. SOLICITOR] GENERAL VERRILLI: Yes. We think those are correct and that this situation is different.

CHIEF JUSTICE ROBERTS: So that — so that a corporation does have a race for purposes of discrimination.

GENERAL VERRILLI: No, not that the corporation has a race, but that corporations can bring those claims. But you’re not interpreting — in that situation, all you’re interpreting is the word “person” in a statute, not exercise of religion, which is what makes it different here.

CHIEF JUSTICE ROBERTS: So those — those cases involve construction of the term “person”

GENERAL VERRILLI: Yes, but only “person.”

CHIEF JUSTICE ROBERTS: So the person — the corporation can bring as a person a claim of racial discrimination.

GENERAL VERRILLI: That’s correct, but not exercise of religion.

The reference to Alito in the title of my earlier post actually was to an exchange during that argument between Alito and Verrilli, as reported that day by SCOTUSblog’s Lyle Denniston:

When [U.S. Solicitor General Donald] Verrilli said the Court has never found a right to exercise religion for corporations, Alito wondered if there was something wrong with the corporate form that it would not be accorded religion freedom rights.  Did Verrilli agree, Alito said, with a lower court’s view that the only reason for a corporation to exist was to “maximize profits?”  Verrilli said no, but Alito had made his point.

Alito, I said in my post, was conflating the Securities Exchange Act, which regulates publicly traded corporations, with state-law corporate structure.  “Or, specifically, he was conflating the reasons for incorporation of a for-profit business or nonprofit organization with the reason for the business itself,” I said.

I am not sure what cases Roberts was referencing in which every court of appeal to have looked at the situation have held that corporations can bring racial discrimination claims as corporations.  But it’s a safe bet that the corporation had legal standing to file the lawsuits not because of any personal beliefs on the part of the corporation’s shareholders or corporate officeholders but because the corporation itself was being directly harmed in its reason for existence: for for-profit companies, profits.  As in business contracts, sales, the freedom of its officeholders to access public accommodations when dining or traveling on business.

The very essence, in other words, of corporations as “people” under state corporate-structure laws.  Corporations don’t have a race, but they do have a right to engage in business, unfettered by racism that directly affects that right.  And all shareholders, whether of a closely held corporation or of a publicly traded one, share an interest in the profitability of a for-profit corporation.  As do the corporation’s employees.

It was the first of two instances in barely more than a week, respectively in the two most high-profile cases of the court’s current term, that our chief justice drew key analogies that depended not upon the actual situations he said were similar but instead upon semantics.  The second instance was a truly frightening one, in his opinion in McCutcheon v. FEC, in which he actually equated infringement of the First Amendment’s speech clause because of the content of the speech–what the speech says; i.e., “content-based” infringement–with statutory campaign-donation limits, which unless money really does talk, is technically content-neutral.

Or is Roberts admitting here that huge campaign donations do speak to the candidate recipient? Probably not.  Which means that he and his cohorts say not only that money is speech, for First Amendment purposes, but that there is no difference at all under the First Amendment between money-speech and actual speech.

Nazi marches, flag-burning political demonstrations, the purchase of legislators and therefore of legislation?  All on an equal par.  Because repugnance based on the content of speech is no more what the Framers had in mind when they crafted the First Amendment than repugnance based on the fact that our legislators are for sale to the highest bidder.  James Madison told Scalia, who passed it along to Roberts.

What we’re witnessing here is the Putinization of our government framework–a quiet coup being led by Machiavelli reincarnated as chief justice of the United States Supreme Court.  And, in my opinion, the Machiavelli tactics–the trickery employed against his own colleagues, the creepy redefinitions of common words, the preposterous analogies, the strategic insertion of out-of-nowhere dictum–are as dangerous as the Putin-like goal.

Or, in Northwest Austin Municipal v. Holder, the 2009 opinion from which he parlayed McCutcheon, dictum from, all of things, Dred Scott v. Sanford.  Seriously.

Last year, when Roberts wrote the opinion in Shelby County v. Holder striking down as unconstitutional a key section of the Voting Rights Act under what I and virtually everyone else–including prominent law professors at top-rated law schools–thought was a newly minted constitutional doctrine (albeit one he had mentioned as dictum, seemingly in passing, in Northwest Austin in grudgingly avoiding striking down the key section of the Voting Rights Act)–he actually, it turns out, was invoking a constitutional doctrine created in Dred Scott, in 1858.

The doctrine is, to use Roberts’ words in Shelby County, the “fundamental principle of equal sovereignty.”  It’s a doctrine so fundamental that it existed for all of three years, between the issuance of Dred Scott and the outbreak of the Civil War.  And now again, since 2013.  I was unaware until last night, when I read this article by Adam Serwer, published last month, that its genesis was Dred Scott.*  Good grace.

The widespread revulsion in the last week to McCutcheon’s Orwellian use of language, as well as to its holding, signals dismay and perhaps outright fear.  Whatever you think about the constitutionality of campaign-finance laws of the sort at issue, you surely know the difference between content-based speech constraints and campaign-donation limitations.  And probably agree that the chief justice’s sleight of hand in blurring the two is repugnant. Especially since it was a cutesy political ploy, and completely unnecessary to the result.

*H/T Jamelle Bouie.

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**Cross-posted at Law of the Jungle.