Watch oral arguments in the Hobby Lobby Supreme Court case in four minutes of video!

Hmm. One of the so-called balancing tests required in the Religious Freedom Restoration Act, the statute that Hobby Lobby is invoking, adopts what’s known in constitutional law as the “strict scrutiny” test, which requires that the government show that it has a “compelling governmental interest” in achieving the stated purpose of a law that impacts some fundamental constitutional right. What the RFRA did was, after the Supreme Court–in an opinion written by Scalia–rejected a Native American’s claim that the “strict scrutiny” test should apply to an Oregon statute that caused him to be denied unemployment compensation after he was fired for smoking peyote as part of a religious ceremony and flunked a drug test (or something; I can’t recall the details), Congress enacted that statute to adopt the strict-scrutiny test to any law that has the effect of impacting someone’s religion. (The strict scrutiny test also requires that whatever law is at issue be as “narrowly tailored” as possible to achieve its goal, and that was no less obtrusive way to accomplish the goal.)

The RFRA is the only statute I’ve ever heard of that adopts the “strict scrutiny” test as a statutory right because the Supreme Court refuses to adopt strict scrutiny as a constitutional matter, for that type of circumstance. So the case has this disorienting feel to it. (Hobby Lobby is also arguing that the contraception mandate violates its direct First Amendment right to freely exercise of religion, but because of that Scalia-authored opinion (from 1990), that’s a weaker case, since they need Scalia’s vote.

So one of Hobby Lobby’s arguments in invoking the RFRA is, well, the government can’t really have a compelling interest in the contraception mandate, because, um, the government has already made so many exceptions to the mandate–to churches, etc.–that, you know, how compelling can this interest really be? Talk about impeaching a witness!

But now, in light of this new information about Hobby Lobby’s own actions, I wonder whether this argument can be applied to Hobby Lobby. Doesn’t Hobby Lobby undermine its claim of religious conviction by choosing profit from those investments over their deeply held religious conviction?

I think there should be a trial on this, with Hobby Lobby taking the witness stand and raising its right hand and swearing to the truth. And if it lies under oath, it should be prosecuted for perjury.

Hmm. Guess you’re unfamiliar with what happened, completely openly, in Citizens United, Mike. That case was originally argued at the Supreme Court during the 2008-09 Court term, on the issue of the constitutionality of a single narrow section of the McCain-Feingold law. That was the only issue litigated in the lower courts and at the Supreme Court–until, after oral argument, Kennedy (reportedly it was Kennedy) persuaded his four Conservative-Movement colleagues to strike down the main section of the statute. Reportedly, Souter had a cow, saying that not only had this issue not been raised by the Citizens United group in the lower courts; it had not been raised even in its Supreme Court briefs. Souter planned to write a scathing dissent making these points.

The solution? Souter was expected to retire at the end of that term. The Kennedy majority, apparently at Roberts’ suggestion, issued an order asking for new briefs, to address the constitutionality of the section of the law that they, these justices, planned to strike down. The case was set for reargument early in the next term, the 2009-2010 term. This eliminated the accurate charge, by Souter or another justice, that the government had not even been notice that this WAS an issue in that case, much less an opportunity to address it.

But it did not eliminate the accurate charge that the Court was overstepping its constitutional authority by raising a challenge on its own to the constitutionality of a key section of that statute. Nor did it eliminate the accurate charge that the most infamous sentence in Kennedy’s opinion–“We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”–purported to resolve a question of fact based upon absolutely nothing at all in the record of that case, a resolution of fact that is obviously, and almost comically, wrong.

So, no, Mike, the Supreme Court can, and does, do whatever it wants. As for actual newly-discovered evidence, I believe it’s not uncommon for it to be included in Supreme Court briefs. Also, I believe it can be added even after briefing and oral argument, via letter to the Court. ERISA-covered (pension-plan) investments are matters of public record.

Actually, though, my comment was pretty much facetious, because the Hobby Lobby case is consolidated with another one, Conestoga Wood. Conestoga Wood is a much, much smaller company, and almost certainly does not have the same pension-plan-investment issue that Hobby Lobby does. I suppose that, theoretically, Hobby Lobby could lose and Conestoga Wood could win, but that will not actually happen.

As for whether appellate courts are limited to basing their rulings on evidence and argument presented in the lower court(s), the fact of the matter is that they do whatever they want. This was illustrated pretty bizarrely very recently in a lower-federal-court opinion reported on at http://www.wiappellatelaw.com/2014/03/18/donning-and-doffing-more-than-his-robe-judge-posner-tries-an-experiment-in-chambers/. The opinion itself is at http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D03-18/C:13-2115:J:Posner:aut:T:fnOp:N:1309962:S:0. And, really, you should read the full dissent. The judge who engaged in that weird “experiment” and then bragged about it in the opinion he wrote is a very, very high-profile Reagan appointee, and is the judge who actually initiated the practice among federal appellate judges of deciding appeals based upon factual or legal claims raised “sua sponte” (by the court itself), with no prior notice to the losing party and therefore, of course, no opportunity to address the factual or legal claim. That became all-the-rage among federal appellate judges, and then among some state-court trial-level and appellate judges, often in unpublished (basically, secret, until a rule change in 2003) opinions.

Now, finally, though, because of the internet and legal blogs, these things are less prevalent. And in 2008, in a case called Greenlaw v. U.S., the Supreme Court finally said that courts cannot base rulings on sua sponte grounds, without first apprising the parties and providing an opportunity to address it–although that opinion is ignored by federal courts, at will; they still do it, although it’s no longer as prevalent.

Make that: “issued its long-awaited opinion ….”

I just posted a similar comment to an early article about the opinion at Slate, at http://www.slate.com/blogs/weigel/2014/04/02/the_supreme_court_just_gutted_individual_campaign_donation_limits_and_conservatives.html.