My Not So Very Complete Supreme Court Roundup

July 14, 2014

I was consolidating pieces I’ve read and noted for further referencing. Plenty got tossed, and some material will pop up on Wednesday (and future Wednesdays). I did find some writing about the Supreme Court, though, which made me think it’s time for a bit of a wrapping up.

I don’t have the constitutional chops for a term in review. I looked for some on line, and all I found was this invite for the Supreme Court Round-Up in Tulsa, OK on July 24. Alas, I won’t be able to make it, but the price is right—$15.00—and you get two hours of CLE and refreshments.

Adam Liptak covers the Court for the Times now. He’s a Yale Law grad who practiced law. His July 1 story, Compromise at the Supreme Court Veils Its Rifts, smartly addresses the superficial adulation associated with 9-0 decisions. Many value unanimity, and there is much to be said for avoiding concurrences when differences are small, but when nine Supreme Court Justices arrive at the same place using very different paths, that matters. (For a mostly contrasting, I think wrong, point of view, here’s former acting Obama administration Solicitor General Neal Katyal’s June 27—pre-Hobby Lobbyop-ed in the Times.)

I previously posted Hobby Lobby in Context by Linda Greenhouse, written for the New York Times July 9 edition. I think the 2013-14 term will be the Hobby Lobby term, just as Windsor was the 2012-13 case for the term, and the ACA case defined the 2011-12 term. Ms. Greenhouse really brings together the themes associated with the Vourt’s religion decisions.

The religion thing concerns me greatly. Growing up, I recall learning about two topics that must be avoided in mixed company:  politics and religion. (I really do have relatives pretty far to my right, and we all know the rules.) Unfortunately, we seem to be moving toward a theocratic state, where religious rights trump all else, and where religiosity cannot be avoided. Those of us who are not myopic—travel not required; just read some fact-based reporting—know how things end up in theocracies. In fact, our nation has spent a big fortune—trillions, which means 12 zeroes—fighting against Muslim theocracies for many years. Why ever do we believe it will be different if it’s Jesus on whom we focus everything? (Oops, there I go, talking about religion! That’s where one fine Vesper—“Call me Bond. James Bond.”—will take someone.)

This post was about the Supreme Court, and there it shall stay, except to say “the Court needs to think long and hard before it moves this country any further toward a theocracy.” And the same goes for Congress and the President, for Hobby Lobby interpreted a statute passed by Congress and signed by President Clinton. Plenty of blame here to share!

As for the Court, I remain very concerned about the willingness to wander into minefields. A post by Sarah Rudden at on July 14, Scalia’s Major Screw-Up: How SCOTUS Just Gave Liberals a Huge Gift, proposes a situation in which, under Hobby Lobby, Quakers won’t have to pay the percentage of their tax bill attributable to wars. Not going to happen, but the Quaker case is much stronger, frankly, than the case David and Barbara Green and their family advanced on behalf of Hobby Lobby, the family business. (Pre-ACA, the Hobby Lobby health care plan paid for contraceptives, and the Hobby Lobby 401K plan has investments in companies that make contraceptives.) So, with Hobby Lobby the Court has created a new jurisprudence, where people test the outer limits of religious rights.

We hire Congress and POTUS to make our decisions for us. For better or worse, that is how it works. When we get to start making our own decisions on matters political, because of what we believe (or, worse still, what our corporations believe), we lose the essence of what we are, to wit:  a representative democracy.

Minefields are where active judges play. Conservatives stay close to the fort, tend to what exists, and take small steps. Not so much the Roberts/Scalia/Kennedy/Thomas/Alito majority. These fellas like to wander around, test the rules and requirements, and “damn the consequences.” Dangerous. Very dangerous!

P.S. “Active judges” are also known as “activist judges.” And, as it was once upon a time with Oldsmobiles, these are not your fathers’ “activist judges.”



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