The Uncertainty of “Least Restrictive Alternative”

by John Holbo on July 2, 2014

Belle and I are on vacation, with intermittent internet. But sea and sun are lovely.

Crooked Timber needs a Hobby Lobby thread, since everyone’s got one. (But don’t expect to hear from me in comments. Wi-fi could die any minute.) You will not be surprised to hear I am sympathetic to Ginsburg’s much-quoted ‘startling breadth’ assessment. Here’s my semi-original question, bouncing off this assessment, via the dissent’s footnote 1.

“The Court insists it has held none of these [startlingly broad] things, for another less restrictive alternative is at hand: extending an existing accommodation, currently limited to religious nonprofit organizations, to encompass commercial enterprises. See ante, at 3–4. With that accommodation extended, the Court asserts, “women would still be entitled to all [Food and Drug Administration]-approved contraceptives without cost sharing.” Ante, at 4. In the end, however, the Court is not so sure. In stark contrast to the Court’s initial emphasis on this accommodation, it ultimately declines to decide whether the highlighted accommodation is even lawful. See ante, at 44 (“We do not decide today whether an approach of this type complies with RFRA . . . .”).”

So: Hobby Lobby wins because Obamacare is not compliant with RFRA because of a less restrictive route not taken. But it could turn out that this less restrictive approach is itself not compliant with RFRA, i.e. is not a route after all. (Cases concerning this are still pending, as I understand it.) What if the Supremes decide this is so (as they are expressly reserving the right to do)? Could it turn out that there is no ‘least restrictive’ RFRA option, due to a sort of judicial uncertainty principle, arising out of the order in which the cases are taken up? That is, the court is really now saying, not that there is a less restrictive option, but that they are not yet sure there is NOT a less restrictive option? Either the cat will be dead when they open the box of their own pending decision about the accommodations for religious nonprofits, or it won’t be. But, until we open the box, there isn’t a legal fact of the matter. But surely there is no chance that they will decide in favor of the plaintiffs in pending religious nonprofit cases and thereby retroactively falsify the basis for their decision in favor of Hobby Lobby?

Or possibly I’m jetlagged.



nick s 07.02.14 at 11:48 pm

(Cases concerning this are still pending, as I understand it.)

Notre Dame v Sebelius, where Posner wrote the opinion for the 7th Circuit.

The Court is saying that the least restrictive option is decoupling health insurance covering lowly and profane human-persons from the gift of lofty and pious corporate-persons, and good luck getting that past Congress, suckers.


widget 07.03.14 at 12:11 am

Tough to say what the Court was thinking specifically, but the logical way to approach the problem would be to say in the next case: okay, now we have an alternative (policy B) that is less restrictive than the policy (policy A) rejected in Hobby Lobby. But is there an alternative (policy C) that is even less restrictive than this one? If so, policy B also fails the test; we reserve the question whether there might be a still less restrictive policy D out there…


roy belmont 07.03.14 at 12:24 am

Sandra Newman ‏@sannewman:

Maybe we should do a Santorum move, and make “Hobby Lobby” a term for the anus, as used in sex that doesn’t make you pregnant.
“Does she take it in the Hobby Lobby?”
“Yeah, she has to – can’t afford birth control.”
“Praise the Lord!”


SamChevre 07.03.14 at 12:44 am

But it could turn out that this less restrictive approach is itself not compliant with RFRA

I think this is a misreading; you need to add “in some cases.”

Like disability accommodation, “is this accommodation adequate” isn’t a globally answerable question under RFRA; the question is always “is this accommodation adequate for this person in this circumstance?” A ramp may be a perfectly adequate accommodation for person one (who is in a powered wheelchair) and not for person two (who is blind).

Similarly here: the accommodation offered addresses some, but not all, of the potential issues. It is on offer, and would be adequate for these plaintiffs; some other plaintiffs may find it completely unsatisfactory. (The best parallel is alternatives to military combat service: some people thought non-combatant service was acceptable, some thought any military service was not acceptable, some thought even working in military-supporting industries was not acceptable. The legal structure eventually accommodated all three.)


ifthethunderdontgetya™³²®© 07.03.14 at 12:55 am

@ widget, I find the thinking of 5 of 9 rather transparent.

Looking not at just this one case, but their decisions in general, it is: “What do rich white Republicans want? Then that’s the law!”


Bloix 07.03.14 at 1:25 am

John, assuming you want an answer and not just snark, let me suggest that you read G’town Law Professor Marty Lederman’s latest post at Balkinization:

Lederman has been writing on Hobby Lobby, Notre Dame, Little Sisters, etc for what is probably years now.

His latest post answers your question. It probably won’t surprise you is that the answer is “what Justice Kennedy thinks,” but Lederman reads Kennedy’s concurrence in Hobby Lobby carefully and comes up with some predictions.


nick s 07.03.14 at 1:27 am

Maybe we should do a Santorum move

Nah. Given that a previous colloquial term for cheating someone is a slur against Gypsies, there’s an opening to replace it with “hobbylobbied”.


The Raven 07.03.14 at 2:22 am

“…a sort of judicial uncertainty principle…”

That’s this Court, has been ever since Bush v Gore. The law is the loser.


The Raven 07.03.14 at 2:29 am

It is just possible this will backfire. For one thing, HL’s health insurance costs will be higher, because maternity care costs more than contraception. For another, young women may decide, because of the costs of contraception, to work elsewhere, and a lot of HL’s business depends on women selling to women. HL will also be subject to a boycott. I am not sure how extensive or effective it will be.

Finally, as Justice Ginsburg predicted, the Supreme Court is already being deluged with religious organizations asking for a carve-out for their pet taboos. Guys, you made your bed.

The Roberts Court, working on being the worst since Taney.


Anderson 07.03.14 at 3:42 am

Quantum reactionaries. Great.


Plume 07.03.14 at 3:56 am

We are slowly but surely becoming a theocracy. And the people who want to take us there are being very clever about it. for the most part. Drip drip drip, rather than a true opening of the floodgates. Though, Alito’s (next-day) clarification after the initial opinion basically does open them. All contraception. Not just the four in question. And they sent out letters about this to the lesser courts.

And why stop at contraception? What makes it a special case over any other thing that might upset believers? After all, their god lists hundreds of “abominations” in their sacred text, with death penalties attached. Like, eating shellfish, wearing mixed fabrics, planting more than one crop at a time, working on Saturdays, talking back to your parents, and the real kicker: If you’re raped in the city and fail to scream out loudly enough — death penalty!!

Once they set a special privilege aside for believers in 950-year-old men, anything’s possible.


Plume 07.03.14 at 4:05 am


The way this should have been decided? Common sense. Good old-fashioned common sense.

If the Greens hold religious views which prevent them from using contraception, they don’t have to. Their choice. No one’s forcing them to in this pluralistic society. They don’t have to buy them or use them.

But they don’t (shouldn’t) get to impose their religious views on others. End of story.

Their “religious freedom” isn’t at issue. It doesn’t consist of making others suffer or pay more for things like contraception, just because the Greens happen to be against it. Again, if they’re against contraception, don’t use it. Practice whatever method you wish to avoid pregnancies or not. You just don’t get to force others into crazy town with you.

It’s always been a major mistake to carve out special privileges for religious convictions. It’s obviously discriminatory. Kinda like in the old days when they granted special work breaks for smokers, but non-smokers couldn’t take them. I worked for a place that did that, as a matter of fact. Smokers received special privileges and worked shorter hours than non-smokers.


godoggo 07.03.14 at 4:32 am

Just in case no-one has pointed out that depending on employers for insurance is stupid, consider it pointed out.


BruceJ 07.03.14 at 4:33 am

I think, sadly, the way this is best viewed is as a mashup of Romney and Orwell:

“Corporations are people, my friends, and some people are more equal than others.”

I’ll just note that the terrible, terrible violation of the Green’s delicate religious principles of providing employees with healthcare that includes contraceptive coverage seems to be no burden at all when it comes to profiting off of goods made in China, with actual abortions happening, even forced upon women in the name of ‘one child’. Hmmm.

This makes it very clear that the Green’s religious faith is far closer to Mammon than Jesus.


Plume 07.03.14 at 4:45 am

Another thought. Or two.

Health care benefits are a part of one’s paycheck. The Greens wish to dictate how their employees spend them, and this will happen all over the country now.

But the Greens are paying for contraception. The private insurance company is. Kaiser and Blue Cross, etc. etc write the checks, not the Greens.

But by forcing their employees to pay for contraception on their own, they will be using the Green’s paycheck to do so, which probably has their name on it. The Greens are actually closer to the transaction than if an insurance company pays.

The whole thing is ludicrous . . . and, yes, godoggo, it’s yet one more reason why we should have Single Payer. Obama and the Dems showed cowardice, IMO, to block even the discussion of that alternative. To me, that was unforgivable.


Plume 07.03.14 at 4:46 am

should read “the Greens are not paying for them.”


Bruce Wilder 07.03.14 at 6:12 am

Yep, and the Obama Administration opened the door, when they caved to the non-profits on this issue, providing a work-around that they thought was oh so clever.


bad Jim 07.03.14 at 6:58 am

“Ernst, what have you done to that cat? It looks half dead!”

In the initial decision, the court made it clear that it was restricted to four methods of post-coital birth control which were considered, at variance with scientific or medical opinion, to be abortion. The morning after, it issued a clarification that all sorts of contraception were covered.

The five Catholic men on the court simply affirmed that Pope Paul was right all along.


bad Jim 07.03.14 at 8:24 am

The only man who didn’t go along is a Jew. The only Catholic who didn’t go along is a woman. This is perhaps not beside the point.


chris y 07.03.14 at 8:54 am

The only man who didn’t go along is a Jew was appointed by Clinton, nominally a Democrat. The only Catholic who didn’t go along is a woman was appointed by Obama, nominally a Democrat. This is perhaps not beside the point.


bexley 07.03.14 at 1:38 pm

Yep, and the Obama Administration opened the door, when they caved to the non-profits on this issue, providing a work-around that they thought was oh so clever.

This is just touchingly naive. Do you think the 5 justices in the majority wouldn’t have found some other way to achieve their desired result? 4 of them came up with exciting new commerce clause jurisprudence in an attempt to strike down the individual mandate.


The Raven 07.03.14 at 1:54 pm

bexley@21: who can tell? But the Administration’s attempts at compromise with the radical right have all failed.


William Timberman 07.03.14 at 2:10 pm

One imagines a future Supreme Court case in which the owners of a restaurant chain argue that their religious principles require them to refuse service to the sons of Ham.


Mike Furlan 07.03.14 at 2:17 pm

“The Roberts Court, working on being the worst since Taney.”

A woman has no rights that a corporation is bound to respect.


Bloix 07.03.14 at 2:20 pm

#s 19, 20 – But there is a reason that Republican appointees have all been Catholics, three of them (Roberts, Scalia, and Thomas) with seminary or Catholic private high school training.

It’s a given that a Republican appointment to the bench must be anti-abortion. Reagan didn’t quite make it a litmus test (he appointed Souter) but since then it’s been a requirement.

There are only two places to go for well-educated people who are reliably anti-abortion: Catholics and fundamentalists. Secular people, mainline Protestants, and Jews tend either to be pro-choice or a little bit squishy on the subject.

But you can’t find many fundamentalists who are qualified to be on the Supreme Court, because fundamentalist Christianity is anti-intellectual. It’s faith-based, which means its methods of reasoning don’t fit the legalistic mode of argumentation that’s required for a Supreme Court justice.

Educated Catholics, on the other hand, are steeped in legalistic argumentation. Their traditional modes of reasoning fit right in to the common-law legal tradition.

So if you’re looking for someone who is a skilled jurist AND is anti-abortion, nine times out of ten you’ll come up with a Catholic.


JHW 07.03.14 at 2:36 pm

I don’t think this is right. Say the accommodation is extended to Hobby Lobby. What happens when we have Hobby Lobby II? The accommodation is invalid under RFRA only if it fails to be the least restrictive means of pursuing a compelling government interest. If the contraceptive mandate doesn’t serve a compelling interest, the government loses, but then the least restrictive means analysis is irrelevant and the absence of a compelling interest would also dictate the result in Hobby Lobby I. If the accommodation is not the least restrictive means of serving the government’s interest, then a fortiori, the direct mandate without the accommodation is also not the least restrictive means of serving the government’s interest, since it’s more restrictive than the accommodation. The outcome of the second case would never alter the right outcome in the first.


Main Street Muse 07.03.14 at 2:41 pm

I do not understand how a corporation is a person; clearly I am way behind the times.

I do not understand how providing IUDs and morning after pills “substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability…” Not one person at Hobby Lobby has to use these forms of birth control.

Hobby Lobby covers Viagra, but not the morning after pill.

This decision sets the precedent for personhood. It accepts that an IUD is an instrument of murder, and thus coverage must be denied. This, in a nation that has an insane obsession with protecting the rights of gun owners to own what they want and do what they want with guns.

I think we will see this court overturn Roe V Wade soon – this case is a precedent for that.

But then again, SCOTUS gave us GW Bush in 2000…



Rob in CT 07.03.14 at 2:44 pm

Corporations are people (which, as a legal fiction so we can enforce contracts and the like is fine), Corporations have religious beliefs (seriously, wtf?) and the rights and privileges of Corporate Persons > those of actual persons, if they’re not owners or properly gendered. Or somesuch bull.

The sexism here is obvious, but so too is the neo-feudalism. The basic principle seems to be that the owners (lords) can do what they wish and if it conflicts with rights/privileges of employees (serfs), the owners/lords trump. The rest of it boils down to fancy justifications for that basic formula.

And yes, it would be better to decouple health insurance from employment, but bear in mind that the mindset on display here wouldn’t just go away if the federal government were the insurer. There would still be people whose rights/privileges are taken more seriously than others, so we’d be fighting roughly the same political battles, with even higher stakes.


Plume 07.03.14 at 2:55 pm

If there is intelligent life in the universe — it’s not here — and they know what’s going on, I imagine their complete bafflement at our granting special privileges to believers in the impossible and the unseen. I imagine them also thinking, “Why not grant the same to people who think Elvis is still alive, or people with moles on their toes. It’s just as arbitrary.”

This is supposed to be a secular society, and adjudicating “rights” should be based on evidence and reality, not “feelings” and “beliefs.” Basing special privileges on those creates an obvious slippery slope without end, because we all have “feelings” and “beliefs.” Why privilege only certain kinds above all others?

“Judge, it is my sincerely held belief that I had to break the law in order to comport with my sincerely held belief that Elvis lives.”

“Okay. Case dismissed!”


James Wimberley 07.03.14 at 3:54 pm

The discussion is all about the Greens’ and Hahns’ claimed religious objection to providing certain contraceptives through employer-paid health insurance. Less has been written about their claimed religious obligation to provide health insurance. If they don’t have one, then the former claim is moot: like insisting on halal sausages, which doesn’t impose duties on third parties because there’s no obligation to eat sausages. Advert for a blog post of mine developing this.


James Wimberley 07.03.14 at 4:10 pm

PS: Justice Kennedy, in his short concurring opinion (cited by Lederman), makes a point of citing Justice Kagan’s dissent in Town of Greece v. Galloway. The citation itself is anodyne boilerplate. I think it’s a clear shout-out to Alito and Roberts that Kennedy will not go any further in Notre Dame in October. This is the pending case where a Catholic employer demands that its women employees not only be denied contraceptive coverage through the employment group policy, but also through direct reimbursement from the insurance company, the Jesuitical fix Alito allowed for Hobby Lobby.


Mark Field 07.03.14 at 4:19 pm

The Roberts Court, working on being the worst since Taney.

Never underestimate the Waite Court for the sheer number of awful decisions.


Lee A. Arnold 07.03.14 at 4:54 pm

Don’t buy from Hobby Lobby. Put them out of business. It is the American Way.


Plume 07.03.14 at 4:59 pm


The trouble is, the conservative movement is so much in lock-step, this case will likely radically increase their sales. They’ll rally the proverbial wagons, take on martyrdom, and make billions.


Dr. Hilarius 07.03.14 at 5:14 pm

Given that the “corporations are people” line of cases is now well established it was predictable that the court would find HL to have a right to religious practice. The existing exemption in the ACA for religious non-profits provided a ready-made argument in favor of HL despite, as Ginsberg pointed out, the significant difference between the two isn’t the legal structure, profit vs. non-profit, but the goal, religious work vs. secular money making. (I see a Monty Python sketch of Jesus confronting the money lenders, the latter successfully defending money lending as a path to salvation).

Where an honest court could easily have disposed of the case was the issue of attenuation. The Greens supply an insurance policy. Period. They don’t have a role in how it is used, specifically, what method of birth control is chosen. They bear no moral responsibility if an employee uses his or her wages on hookers and blow. Or will that be that next claim?

The court’s alternative of the tax payers picking up the contraception cost is just stunning. True judicial activism pulled out of nowhere. It should silence all attempts to argue that the majority authors have any intellectual honesty.


BruceJ 07.03.14 at 5:23 pm

Rob in CT:

The sexism here is obvious, but so too is the neo-feudalism.

And this is precisely the nexus of the two wings of the Republican party; the plutocrats love the neo-feudal aspects and know that as people at the top of the pyramid, they’ll never be subject to the kinds of fanatic strictures the neo-taliban wing would apply to the serfs.


Lee A. Arnold 07.03.14 at 5:27 pm

Plume #33: “…this case will likely radically increase their sales.”

More of the fearful “rhetoric of reaction”. If that happens, it happens: then that is the way it is going to go. But this is unlikely, because conservative areas are falling faster into poverty than liberal areas. Hobby Lobby needs to expand, and they have just made a big mistake. They may be about to run into a brick wall. Some businesses having supply contracts with Hobby Lobby are going to reconsider. Street customers should be encouraged to take their business elsewhere, too. Nobody “likes” abortion, but the majority feel it is the individual’s decision, and not for government or employer to decide. But business owners have a 1st Amendment right to say which hypocritical path to mammon they will pursue. So instead of the rhetoric of reaction and all the fearful fidgeting about what the Supreme Court is going to do next, why not go “pro-active” call for a consumer boycott? Is it too much work?


Ogden Wernstrom 07.03.14 at 5:37 pm

I won’t believe that Corporations are people until Texas puts a few to death.

Preceding that, of course, we will have to come up with a corporate equivalent to prison time. A person in prison does not get to continue to work at a job or run a business, has strict limits on communications with the outside world, how much money can be put in their prison account by outsiders, etc.

Since the collective capital is the corporation, as represented by shares of ownership, I expect that there could be no shareholder meetings, that shares would not get any earnings – trading of shares might need to be suspended for the duration of the prison sentence.

During the prison sentence, the corporation has to do what a bunch of government employees (who are likely to be authoritarian jerks) tell it to do.

A corporation might even get HobbyLobbied. I hear that happens a lot in prison.


marcel 07.03.14 at 5:51 pm

A minor correction of fact that changes no argument:

Bloix wrote:

Reagan didn’t quite make it a litmus test (he appointed Souter) …

GHWBush, aka 41, appointed Souter.


geo 07.03.14 at 6:06 pm

Lee@36: Is it too much work?

Of course. Boring, too.


Plume 07.03.14 at 6:28 pm

Lee #36,

There is no First Amendment right to discriminate against female employees. The Court didn’t even use the First Amendment to make its case. They used RFRA. Which is bizarre, given that it was put into place to protect the religious practices of Native Americans, especially their use of peyote.

It takes pretzel logic on steroids to get to the place where an employer can claim “religious freedom” in order to deny coverage to female employees for things that employer doesn’t like.

If he doesn’t like them, he doesn’t have to use them. He shouldn’t have the right to block usage for others, make their lives more difficult and costly. None of that has anything to do with First Amendment protections.


Bruce Wilder 07.03.14 at 6:33 pm

I don’t know if there’s a Social Contract — sometimes, it seems useful to imagine it — but I’m pretty sure there’s a Social Conversation, a dialectic that shapes our sense of a shared reality and a shared reasonableness. Sometimes, that consensus reality can be fairly unrealistic, but, within its bounds, how people will “think” is fairly predictable, and how they can be persuaded to cooperate with us.

I think about what’s going on with gay marriage — the steady stream of Federal district court judgments striking down as discriminatory, state statutes prohibiting gay marriage — and I see the effect of the shared reality of the Social Conversation. Somewhere along the way, roughly trackable by polling data but also by various cultural indicators, gay became normal, and as it became normal, laws prohibiting gay marriage seemed arbitrary and unfair, as a matter of law. This is the process of the political, cultural activism working its magic on the consensus reality maintained by the Social Conversation, and, eventually, producing a result in law.

Hobby Lobby seems like a reactionary response, a reactionary rebellion against the dictates of the consensus reality shaped by the Social Conversation concerning what is reasonable. It’s pushback. From a reactionary’s point of view, gay marriage as a fundamental right is an infuriating instance of the power of the Social Conversation to move consensus reality, and achieve a political end, without passing thru the political processes, where reactionaries do so well (e.g. thru state legislatures in the U.S. over the last couple of generations) From a reactionary’s perspective, gay marriage is inexplicable, and, yet, somehow, it is “reasonable” and being “reasonable” it cannot be resisted.

So, in Hobby Lobby, the reactionaries are attempting to reverse-engineer a reactionary’s paradise. Start from a constitutional principle, well-accepted by the popular consensus — religious freedom and tolerance — and construct a legal doctrine that sanctions reactionary preferences. Not just a dubious reactionary religious doctrine that disapproves contraception, but also a neo-feudal authoritarian doctrine that privileges the alleged religious beliefs and practices of the owners of business corporations over the individual persons, who work for them.

It is novel in having explicit social and cultural content, but it is in line with a general line, in which the Court has been ruling that in the confrontation of the individual with the business corporation, the individual has no legal rights or claims.

It’s an interesting challenge to the neo-liberal complacency, which has acquiesced in the rapid transformation of economic institutions into an authoritarian plutocracy, while celebrating rapid progress on social and cultural issues.

As a technical matter, it rests on a statutory interpretation and Congress can modify the statute, if it can find the proper language. But, if the Social Conversation, itself, is broken, is there any language that can make sense to people determined not to converse?


slavdude 07.03.14 at 7:03 pm

roy @3:

Well, that would certainly produce a lot of Santorums.


Lee A. Arnold 07.03.14 at 7:15 pm

Geo #39 — Hi! Exactly! Only of course it would be a lot more fun. There is nothing like hitting them in the wallet.


Main Street Muse 07.03.14 at 7:21 pm

Bristol & Sarah Palin declared today to be #HobbyLobbyLove day. Check out that hashtag on twitter… it’s hilarious, in that dark form of humor we seem to have in spades today.

I have a comment stuck in moderation, so I will repeat here that the Hobby Lobby decision sets the precedent to overturn Roe v Wade. IUD as murder instrument…


Lee A. Arnold 07.03.14 at 7:31 pm

Plume #40 “The Court didn’t even use the First Amendment… it takes pretzel logic on steroids…”

Nobody in the consuming public is going to worry one snit about RFRA. Most people cannot name a Supreme Court member. But people understand freedom of religion. They can smell pretzel logic and they understand not doing business with hypocrites. Boycott now!


BruceJ 07.03.14 at 7:33 pm

Main Street Muse sez:

the Hobby Lobby decision sets the precedent to overturn Roe v Wade. IUD as murder instrument…

This doesn’t target Roe so much as it targets Griswold v. Connecticut, something that also excites the neo-taliban. Rick Santorum explicitly brought this up during his campaign. This was made abundantly clear by the SCOTUS revision of the decision to include all contraceptives in the ruling.

This is as much about ‘personal religious liberty’ as the Civil War was about ‘states rights’.

Yes, the Civil War was about “State’s Rights”, it’s just that it was about about the ‘state’s right’ to allow humans to be owned, bought and sold as livestock.

The HL case is about a corporation’s “personal religious liberty” to impose their religion on other people. Justice Ginsburg is correct, there is no way in hell this will end up being limited to contraception.


MPAVictoria 07.03.14 at 7:42 pm

“One imagines a future Supreme Court case in which the owners of a restaurant chain argue that their religious principles require them to refuse service to the sons of Ham.”

Already happened in 1968:

However my faith in the current SC is so low that I am unsure that they would get the same result today.


Wonks Anonymous 07.03.14 at 8:25 pm

All the GOP-appointed judges are Catholics. I believe Thomas was not when he was appointed, but later converted. The same was true of Bork (when he was nominated). Douglas Ginsburg was the last Jewish judge a GOP president tried to put on SCOTUS (the only one I can think of who actually made it on is Cardozo). GWB tried to nominate Harriet Miers, who I believe is a Methodist, as well as Alberto Gonzalez, but settled for Roberts & Alito. I’m thinking that we may get a Mormon on the court before the next Protestant.


Plume 07.03.14 at 8:34 pm


We need atheists and agnostics there, more than ever. I’d also love to see a Wiccan judge, a Buddhist and a Taoist. Time to kick these old believers in Yahweh to the curb.

If we compare all the great religions, no father god can compete with the murderous, genocidal madman of the Judeo-Christian bible. No father god comes close to him for sadism, murder, genocide and the mother of all holocausts, the Second Coming. If one takes the bible literally, it’s beyond surreal that the god of the bible ever gained “moral authority.” It simply defies all logic. And any nation built on that premise is already in deep, deep trouble.


Patrick 07.03.14 at 9:20 pm

A lawyer representing a corporation is obliged to represent the corporation and NOT the corporation’s principles should they be attempting to use the corporation improperly.

How is a lawyer to determine whether a given corporation is Christian? Perhaps its principals are lying and trying to force their Christian beliefs upon a Muslim corporation? The corporation can only speak through its employees and owners, but as I understand this case, its religious values are separate from theirs.

I recognize that the Court might just accept whatever the corporation’s lawyers say about the corporation’s religious beliefs, out of a concern for not putting a person (corporation) through a religious inquisition to determine their true religious beliefs. There’s a long history of avoiding that sort of farce in a court room- if you say you’re jewish, the court will consider you jewish, generally speaking. So if the corporate lawyer says his client is an Evangelical corporation, that can be accepted as true. But the lawyer has an ethical obligation to ensure that this statement is actually true. How is he to discharge this obligation?


Bloix 07.03.14 at 11:11 pm

#48 – All the GOP-appointed judges are Catholics. I believe Thomas was not when he was appointed”

Souter is an Episcopalian (thank you for the correction, Marcel).

Thomas was raised Catholic and considered becoming a priest. He attended a seminary before going to Holy Cross College. I don’t know how his family became Catholic – you’d think Catholics would be thin on the ground among black people in coastal Georgia. But that may just be ignorance talking.


SamChevre 07.03.14 at 11:59 pm

Off-topic, but I don’t think describing Justice Thomas as “a black person from coastal Geogia” is quite right; it’s sort of like describing Chief Custalow as “a black person from Tidewater Virginia.” It’s accurate as to looks, and as to the reaction of the ignorant, but probably not accurate as to how they would describe themselves. (Gullah and Mattaponi, respectively.)


William Timberman 07.04.14 at 2:23 am

MPAVictoria @ 47

An appropriate coda, thanks. The point is really Corey Robin’s — reactionaries never give up, and whatever their current arguments, the premise is always the same. Even if we believe that the arc of the moral universe bends toward justice, we should beware of believing that everyone lives in that universe.


Lee A. Arnold 07.04.14 at 2:42 am

Well John Holbo, there you go. Today’s Wheaton decision should cement this court’s reputation as being dominated by an unscrupulous pack of clowns. If this doesn’t wake people up to start voting the Taliban out of Congress, to try to ensure better judges, nothing will.


Saurs 07.04.14 at 6:10 am

Nobody “likes” abortion, but the majority feel it is the individual’s decision, and not for government or employer to decide.

That’s just silly. I like medicine. I like things that keep me and other people healthy. I like abortions, and I like the idea of them, the safer the better. I’m certainly not in the majority, but I’m not the only one.


Glen Tomkins 07.04.14 at 6:10 am

I think it’s a categorical error to examine the judicial decisions of the Opus Dei/Federalist Society majority on the Court in terms of the soundness or fallacy of its argumentation. They’re in charge. They can’t be removed from office. Everyone will follow their decisions no matter how absurd. They will use chop logic to write gobbldygook in their decisions just to prove that, unlike you and me and the rest of us who aren’t members of the Ennearchy, the rules don’t apply to them.

Back when Huey Long ran Louisiana, a week or so before election day he would assemble the sheriff’s from the parts of the state his machine controlled to determine the vote counts. Most parishes they would just give a quota. They would figure out how many votes they needed from that parish, and the sheriff’s responsibility was to make sure that quota was met. But some places, such as Plaquemines Parish downriver from New Orleans, their people had such tight control that they would use the meeting to actually determine the precinct by precinct returns. It let free a somewhat unexpected streak of creativity in an otherwise pretty unimaginative bunch. Some precincts they would give the exact same vote total election after election. Some they would do number sequences that would migrate from election to election. Some favored coding their wives’ names into the results numerologically.

It would be as profitable a use of your time to try to find anagrams in the texts of these people’s decisions, as to scrutinize them for sense and reason. The point of what they have to say is the same as the point made by the vote counts in Plaquemine Parish. “We’re in charge. We can do whatever the flip we want, and there’s nothing you people can do about it.”


bad Jim 07.04.14 at 9:08 am

That’s about right. There’s no sense to it, because there doesn’t have to be. Women can still get health care without corporations soiling their skirts. It’s been entertaining reading the conservatives’ fevered responses to their victory over the sluts, meaning any women using contraceptives, meaning pretty much every woman, while keeping in mind the key element that contraception continues to be covered by health insurance as basic health care.

If I have this straight, the Hobby Lobby decision doesn’t actually have any effect on any woman’s access to health care; it merely affords plausible deniability to shitheads.


SamChevre 07.04.14 at 12:00 pm

They’re in charge. They can’t be removed from office. Everyone will follow their decisions no matter how absurd. They will use chop logic to write gobbldygook in their decisions just to prove that, unlike you and me and the rest of us who aren’t members of the Ennearchy, the rules don’t apply to them.

Are you sure you’re not confusing Hobby Lobby and Goodridge? Because that description sounds like something that actually changes long-established settled law, not something that decides the exact mechanism of application for a new administrative rule.


Lee A. Arnold 07.04.14 at 2:57 pm

Saurs #55: “That’s just silly.”

I was writing specifically in the context of running a boycott against Hobby Lobby, and thus the logic of shoppers who don’t have the time to think much at all, and I wonder who is being silly. But perhaps you have discovered a resonant new slogan. So, next time you are protesting at the supermarket for the Right to Choose, please wear a sign around your neck that says, “I like abortions”. Then write down all the responses you get from people, and please report the results back to us.


Lee A. Arnold 07.04.14 at 4:56 pm

Also, remember to wear a bullet-proof vest.


Glen Tomkins 07.04.14 at 5:59 pm

“…something that actually changes long-established settled law, not something that decides the exact mechanism of application for a new administrative rule.”

Whether they show their contempt for precedent by overturning settled law, or with jurisdictional immodesty, either way they tell the rest of us that they get to do what they want, and we have no recourse.

The Constitution doesn’t give them the power of judicial review. That power is a logical necessity — for matters that the courts have to decide. Insofar as the set of things the courts decide is limited, it’s a limited power. But when you reach the point that you grant cert to a corporation for a claim that its conscience is burdened and freedom of religion infringed by having to include contraception in its health insurance plan, then there is no limit to the reach of judicial review, and the Nine are our Lords and Masters.

So sure, even for this intrusion of theirs into a “mere” administrative rule, they don’t bother to avoid logical fallacy in the rationale they offer for their actions. They don’t have to bother to keep up even appearances, so why bother?


William Timberman 07.04.14 at 6:09 pm

Modernity seems at times to be leading us, like lemmings, over the final cliff, so to some extent I understand the proliferation of talibans, each tailored to the fears of the sufferers nearest at hand. Still, it’s hard to see Scalia, for example, as anything but a swine. His lineage is certainly at least as old as ours, which in some sense makes him the present avatar of an ancient adversary, but it’s still a stretch to take him as seriously as he takes himself.

We may be equally deluded, but if you can’t tolerate chaos, trust your own progeny, and believe that we’re bound somewhere whether we appreciate the journey or not, I can’t see the point of being human. We are, above all, changeable beasts — even those toiling in the depths of the Ministry of Truth must sense that all those words that need erasing have come from somewhere.


William Timberman 07.04.14 at 6:35 pm

Was that a 4th of July address? Mmm…I suppose it was. Mea culpa.


Glen Tomkins 07.04.14 at 7:20 pm


We are never going to get a system that keeps swine out of office. What we have to settle for is a system that never lets any of the potential swine have the kind of unlimited power that we have let SCOTUS justices acquire.

Stop blaming impersonal historical forces for the predicament we are in. I guess if you believe that the way things are supposed to work, the only way they can work, is that the other side, the conservatives, at least have to be decent and honest, if wrong-headed, then, sure, the existence of a Scalia is a sign of the End Times.

Scalia is a product of our side’s failings. We should never have let him on the Court. He was obviously, at the time of his nomination, a vain and shallow little man with a comic book ideology. He clearly lacked a sense of fairness or balance, and he very publically, in terms dripping with contempt for our side as well as for settled law, espoused an ideology contrary to ours. Yet our Senators refused to block his nomination out of the ridiculously impractical idea that litmus tests, blocking a nominee “just” because of poisonous beliefs, was beneath us, that only the other side would stoop to such. Our side had this vision, that you seem to share, that the courts could and should be the honest brokers, above politics, and that in their position above and beyond the blandishment of the comfortable, we could and should rely on them to comfort the afflicted and afflict the comfortable in ways the political branches would never find nearly as easy. But that vision was always just plain wrong. We had the Warren Court because of politics, because our side, plus three RINO presidents, did all the appointing from 1932 to 1980.

The other side has never forgotten the political nature of a Warren Court whose fundamental decency we take for granted, as foolishly as libertarians take for granted all the decencies of civil society. They worked tirelessly for a generation to exploit our foolish idealism and idolatry of the courts, and they finally succeeded in getting a stable working majority late in Dubya’s reign. Not one of the five, with the possible exception of Kennedy, should have gotten a single D vote for confirmation. They didn’t hide what they were, their contempt for law settled by courts of the Warren era, and how they would vote if allowed on the bench. We refused to take responsibility for not letting rightwing ideologues onto the court, and that, and only that, is what we should blame for this Opus Dei, Federalist Society junta that runs a court that we refuse to limit. Scalia went from being a muttering dissenter, who at least therefore felt compelled to write dissents that made some sort of sense, to an untrammeled swine.

Our side still refuses to even talk about litmus tests for future nominees, that we will never again let in a Scalia, or Alito, or Roberts or Thomas. You’ld think, if we wanted to convert outrage against these latest decisions into votes in November to protect our Senate majority, litmus tests would be the minimum thing we would be talking about, but, God help us, our side seems to still be above that. Oh, and just forget about mentioning restricting SCOTUS jurisdiction, or impeaching Alito and Roberts for lying about their devotion to stare decisis at confirmation. That’s crazy talk. Only the other side stoops to that sort of talk, to talking about judges as if they were anything but secular saints against whom mere politicians dare not raise a hand. Any method at all of limiting SCOTUS power is still completely off limits for our side.

Sure, if the power of SCOTUS can’t be limited, by all means give in to eschatological despair. The Five Horsemen of the Federalist Society Apocalypse are indeed upon us. That, or do something about the practical situation we face. What’s happened here is a simple, easy to understand power play, that can and should be countered with political power. We promise litmus tests for future nominees and thereby harness outrage to keep the Senate, and then the WH. We wait out the five. They aren’t actually apocalyptic beasts, but mere mortals, and Kennedy will check out some time soon. Maybe, if running against these bums in the next election gives us the trifecta, we can think about yanking SCOTUS jurisdiction over campaign financing, if only to get the public (and ourselves, chiefly our own court-besotted selves) used to the idea that judges are political creatures just like Congresscritters and Preznits, and need to have their leashes yanked from time to time.

We do all that, and Scalia still acts like swine, then it’s on Scalia. But power corrupts, and absolute power corrupts absolutely. We gave Scalia absolute power, so of course he gave in entirely to swinishness. It’s on us until we take back that absolute power.


James Wimberley 07.04.14 at 10:38 pm

I think I have to disown my rose-tinted speculation in #31 about Justice Kennedy after his acquiescence in the shameful Wheaton ruling. One thing’s sure, Kagan and Sotomayor won’t now be appeased by a few nice words.


William Timberman 07.05.14 at 2:17 am

Glen Tomkins @ 65

You’ve misunderstood me, but I can see why you might have felt the need to. I don’t know how it turns out any more than you do. Maybe it just goes on getting bigger and more frantic forever and ever amen. What I do know is that forever is a long time, and that an awful lot of us at present seem to me to be barking up the wrong tree.

Maybe a coalition of the willing can fix a lot of what’s wrong, but I think it’s worth considering that like the past, any possible future, eschatological or not, will incorporate a lot of things that will alone can’t fix. Politics, then — especially mass politics — is a matter of some subtlety, and a damned tedious process, even when it more or less works. Two steps forward, one step back. Maybe at some point we do come to the edge of the cliff, and maybe we don’t. Que será, será, eh?


Ronan(rf) 07.05.14 at 2:58 am

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