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Hobby Lobby Lobby get your adverse here

So, here's the thing: I found myself, in the wake of the Hobby Lobby case, much more inclined to blog about what my side was getting wrong than about the decision itself. Perhaps that's understandable—I was actually seeing lots of things, both in Left Blogovia and on Facebook, that wildly overstated or just plain misstated the case. That irritates me. In particular the case was not about anybody banning anybody from using anything, and using the word in headlines and tweets and gifs and so forth is only going to convince the other side that we are untrustworthy. Bad enough what it actually is, is what I'm saying. On the other hand, it seems very wrong to react to political misfortune by criticizing my allies, rather than my foes. So, you know, I didn't.

Your Humble Blogger found it difficult to write about the case itself, though. I am doing so, obviously. Or at least I'll get there eventually, but it may take me a minute to sneak up on it through the thicket of other cases and a few general statements about the Supreme Court, Law and the Real World.

I'll start off talking a bit about the Planned Parenthood case. In this one, the Court said that the Massachusetts law that created a buffer zone around an abortion clinic violated the rights of people who wished to protest at the clinic's door. It seemed to me that this was a perfectly reasonable case, in which my own opinion was different from that of the majority. It was a case of competing rights and interests, and I certainly understand—and find compelling—the idea that people should be able to protest and picket against private groups and even individuals. On the other hand, Massachusetts has tried to accommodate Operation Rescue and their ilk, and has a legitimate state interest in preventing the violent acts that surrounded the clinic protests. In addition, the rights of the individual women seeking care need to be protected. The State has to seek a balance, and the Court is there, in large part, to tell the State when it has overreached that balance.

Now, I don't think it did. I think that the Court, regrettably, ignored the real world. Blindfolded Justice and all. To me, the most compelling thing is that the people harmed (and make no mistake, there is actual harm involved) by overturning the law are for the most part in a category that tends to be underrepresented in ordinary politics and have less opportunity for redress, in the ordinary scheme of things. Of course, that's my judgment, but I am willing to stand by it. However you look at it, though, it seems like the Court essentially said: we're sticking with the Freedom of Speech principle and let the real world take care of itself.

I think the same thing, more or less, was going on in the campaign finance case. There's a principle here, about Freedom of Speech and what restrictions can be placed on it under what conditions, and the Court essentially made a principled decision that will have real-world consequences that are totally unrelated to that principled decision. The world I perceive, at any rate, is not the world of Blindfolded Justice in this instance. Without removing that blindfold, it's hard (I think) to counter the argument on principle.

And again—the Michigan affirmative-action case is somewhat different, but I feel underneath, the same tension is there between a laudable principle (color-blind application of state processes) that is much easier to cling to whilst blindfolded from reality. In reality, strictly ignoring race ignores far too much, and does actual harm—again—to people who have less opportunity to redress it through political means.

Now, as far as I'm concerned, one of the great innovations of the Warren Court was to take off the blindfold and look at the real harm done to real people by court cases that were defensible on principle in the abstract. On the other hand, it's possible for the Court to go too far in that direction. We don't, ultimately, want the Court to disregard the Constitution and the Congress in order to redress all the injustice in the world. We want balance. We want judiciousness. We want fairness. We want both principle and empathy. And that's extraordinarily difficult, it really is. So in a lot of cases, in most cases actually, even when I think the Court has it wrong, I see what the difficulty is, and I get it. After all, easy obvious cases rarely come up to the Supreme Court level.

And here's where I come back around to the topic of conversation, because unlike all of those other cases, where I understand that the competing problems interact in ways that just aren't going to be resolvable to everybody's satisfaction, Hobby Lobby just seems completely fucked-up. I mean, they are balancing on the one hand actual harm coupled with overturning the duly elected legislators and on the other hand petulant fuckery coupled with insane theories of corporate impunity. I don't get it at all.

Which is why, I suppose, my instinct was to engage with people who agreed with me but in my opinion were wrong about the details or the language. The other side of this one… I just don't get it at all.

Tolerabimus quod tolerare debemus,


Two thoughts:

(1) Hardcore libertarians might be inclined to agree with the Hobby Lobby decision on the principle that it's generally wrong for the government to force employers, just because they employ people, to do anything that wouldn't be ok to force a private citizen to do. Such as, provide health care to employees at all. That does not seem to me like an argument that anyone other than hardcore libertarians would make, and whatever you think about the Supreme Court, they're certainly not hardcore libertarians (and they certainly haven't ruled that it's wrong to force employers to pay for healthcare for their employees). But I can see some premises from which you could make that argument.

(B) That said, realistic hardcore libertarians (such as yours truly) are not generally in favor of applying hardcore libertarian principles *selectively*, because that's bullshit. Saying "it's fine to force employers to provide healthcare to their employees, but oh not *certain kinds* of healthcare" is not libertarian, it is, well, bullshit.

As to your (1) I have to point out that the government (under Obamacare or previously) does not, in fact, force employers to provide health care or health insurance to its employees. What it does do is say that if the employer does provide insurance, it gets a massive tax break--or you could alternately think about it as a massive tax penalty for not providing. At any rate, two tax rates, a higher one for companies that don't provide and a lower one for those that don't. You could argue that it is in effect compulsory—it seems like a stretch to me, but then I am not a hardcore libertarian.

At any rate, one of the most important things the ACA did was change the rules for what 'counted' as insurance, essentially saying that if you don't cover the following n things (sometimes with rules about appropriate co-pay) you aren't really insuring at all and the employer doesn't qualify for the tax break. The Hobby Lobby decision says that people of one particular religion can have an exemption from one particular part of that regulation and still get the tax break. I would think that a hardcore libertarian would call that even more bullshit than the ACA generally—but again, I am not a hardcore libertarian and shouldn't assign them opinions that I think they should have.


Given that the pernicious majority on the Supreme Court tends to hew to the "principled" line of blind justice, as you describe in a number of cases, mainly when it serves their ideological goals and doesn't hew to that line when it doesn't, I don't think their behavior can be excused as "principled but unrealistic." Perhaps that is the larger implication the post is concerned to convey?

Regarding: "We don't, ultimately, want the Court to disregard the Constitution and the Congress in order to redress all the injustice in the world." I don't know about that. It would bring a bit of balance to the current Congress, one House of which would like to disregard the Constitution in order to redress such justice as remains in American society. At the very least, I'm kind of curious about what it would look like if the Supreme Court favored justice over law (which would indeed be a radical swing from its current orientation of favoring moneyed interests over law) and how the legislative and executive branches would respond to having legislation overturned on the ground that it screwed the poor and therefore violates the premise of the Constitution that the federal government exists, constitutionally, "to promote the general welfare." How would they respond to that kind of "judicial overreach"?

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