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.

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