Sunday, July 6, 2014

The Problem With Hobby Lobby

Chief Justice Roberts famously declared during his confirmation hearing for that job that the responsibility of a judge is to simply "call balls and strikes." On first blush, the umpiring analogy is elegant in its simplicity - it offers the patina of what we think of when the word "judge" is used - fairness and impartiality, an objectivity that affirms our belief that justice is blind. But on deeper examination, the Chief Justice's use of this metaphor is both facile and subtle (a rare two-fer). 

The superficiality of his statement is axiomatic. The idea that every judge calls each case the same would obviate the need for appellate courts and never result in a case being decided by a panel of judges in anything other than unanimous fashion. The law would rarely evolve because the view of those judging it would be identical. The subtlety is thus equally apparent. The fact is, not every umpire has the same "strike zone." Some umpires might give an inch on either side of the plate, call a low strike (slightly below the knee) or refuse to call anything at the letters as anything other than a ball. Players know this. Managers know this. Even Major League Baseball knows this, because even in its belated move to implement instant replay, the one thing that is entirely off limits from challenge is the call of the umpire on a pitch. 

But the reason this system works is that even if the strike zone of one umpire differs slightly from that of another, so long as players and managers know that there will be consistency both by that umpire and, more importantly, a general consistency among umpires, that is, the universe of what is and is not a strike, minor exceptions notwithstanding, is known, the integrity of the game is not jeopardized. If umpires suddenly started calling a pitch that bounced in the dirt a foot in front of home plate a strike or a pitch "on the black" four inches above the knee a ball, the game would lose all credibility because the collective understanding of how the game is played, and more importantly, how it is judged, would disappear. 

So what does all of this have to do with the Supreme Court's decision in Hobby Lobby? Everything. The judicial branch of our (federal) government holds a unique place - ever since a little case every first year law student learns about - Marbury v. Madison - we have vested in our courts the right to have the final say on the validity of all laws in our country. That these decisions are made by individuals who are unelected cuts both ways - it shields them from public opprobrium, but has typically been honored by those who have served as a power that requires heightened discretion, lest their decisions be viewed as going against the will of our elected representatives. 

One of the foundational concepts of Supreme Court jurisprudence is the concept of stare decisis - that past precedent should be respected and only, in extreme circumstances, overturned. Indeed, this concept is essentially the "strike zone" of judicial review. The law is generally defined in the same way the strike zone is - and while judges (and justices) may quibble about their respective view of those parameters, but for some really compelling reason (say, finally recognizing that racial discrimination is odious and antithetical to everything we, as Americans, believe in), should be honored. By creating a durable body of law that is not subject to the personal legal views of any particular Justice, the Court's jurisprudence is considered stable - an articulated playing ground upon which everyone can exist. 

But what happens when cases like Hobby Lobby are decided is that the integrity of this delicately balanced ecosystem is called into question - that in exchange for being given the power to have the final say on things, the Court will not rule in a way that is viewed as overtly political - is offended. It is no surprise that the modern nadir for the Court was its 2000 decision in Bush v. Gore. Called to decide not just who would be our next President, but to give all Americans the comfort of knowing that he had been selected fairly, the court instead issued an unsigned opinion that shut down a recount approved by Florida's highest court, explicitly said its own ruling should not be given precedential weight and handed the White House to George W. Bush. In other words, instead of rising to the occasion, the ruling smelled of bald-faced politics. As an unelected institution, no greater sin could have been committed. If the bedrock principle of our nation is the rule of law and that is subverted for what is viewed as a political reason, the whole system breaks down.

While the Hobby Lobby decision is not as egregious as the stain on the rule of law that attended the Bush v. Gore decision, it has the same potential to erode confidence in the impartiality of this hallowed institution. The problem for the Court is not that a contentious case was decided 5-4. It is that the rationale for the majority decision is so outside the court's jurisprudence as to be the equivalent of suddenly calling that ball in the dirt a foot from home plate a strike. Never before have a for-profit corporation's religious rights trumped a governmental interest in applying a law neutrally. And for those thinking perhaps the decision was limited, the Court gave no meaningful explanation as to whether not just closely-held corporations, but public corporations, could argue that a "sincerely held" religious belief could trump a governmental interest if a less restrictive means of achieving that interest was unavailable. As Justice Ginsburg noted in her dissent, all manner of challenges could arise based on this anachronistic interpretation of not just federal law, but the Court's own established precedent. 

This may sound like so much (pardon the pun) inside baseball that becomes grist for years of law review articles, but this shit actually matters, because once you've crossed a particular jurisprudential rubicon the consequences could be massive. The Supreme Court has now placed courts in the position of judging whether sincerely held religious beliefs will trump federal law if not properly accommodated. And this is not abstract - Muslim prisoners held at Guantanamo Bay are filing suit, citing Hobby Lobby, to permit communal prayers during Ramadan; and, as Justice Ginsburg noted, the Court's ruling opens the door for other faiths to challenge laws that impact everything from blood transfusions to immunizations, and this does not even get to what would happen if a public corporation made a similar challenge. Of course, the Supreme Court has the luxury of granting certiorari to less than 100 cases a year while rejecting thousands more, thus risking the type of piecemeal judicial interpretation throughout the twelve federal circuits that could have been avoided if the Court had stuck to its long-standing principles regarding the neutral application of laws that impact religious beliefs. 

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