Patterico's Pontifications

8/1/2014

Justice Ginsburg Decries Constitutional Interpretation in Hobby Lobby Case That Had Nothing to Do with Constitutional Interpretation

Filed under: General — Patterico @ 7:33 am

So Katie Couric interviewed Justice Ruth Bader Ginsburg recently, and the Justice’s statements about the Hobby Lobby case made news:

The decision that an employer could refuse to cover contraceptives meant that women would have to take care of that for themselves, or the men who care. Contraceptive protection is something that every woman must have access to to control her own destiny. I certainly respect the belief of the Hobby Lobby owners. On the other hand, they have no constitutional right to foist that belief on the hundreds and hundreds of women who work for them who don’t share that belief. I have never seen the free exercise of religion clause interpreted in such a way.

What?

The Hobby Lobby case was not decided on the strength of the Free Exercise Clause of the First Amendment. The majority did not decide that the Hobby Lobby owners had a “constitutional right” to do anything. Read the opinion here (.pdf). The Court noted that the Religious Freedom Restoration Act was a Congressional response to Supreme Court decisions that had held that “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.” What’s more, Justice Ginsburg (or at least her law clerk) appeared to understand this, as Justice Ginsburg’s opinion states in the second paragraph:

The Court does not pretend that the First Amendment’s Free Exercise Clause demands religion-based accommodations so extreme, for our decisions leave no doubt on that score. See infra, at 6-8. Instead, the Court holds that Congress, in the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §2000bb et seq., dictated the extraordinary religion-based exemptions today’s decision endorses. In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith-in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.

I guess the lesson here is, when speaking on television about a decision that you barely understand because it was written entirely by your law clerk, don’t.

Thanks to Ben S.

P.S. I should add: since we don’t have the entire raw footage of the interview, it’s remotely possible that this is a hack job by editors who took a portion of a long answer and condensed it misleadingly. But it’s not unusual for so-called experts who are ideologues to get this wrong; why, Dahlia Lithwick and Sonja West said in Slate that the HHS contraceptive mandate had been declared “unconstitutional” by the majority Justices. Again: these are the “experts.”

54 Responses to “Justice Ginsburg Decries Constitutional Interpretation in Hobby Lobby Case That Had Nothing to Do with Constitutional Interpretation”

  1. Ding.

    Patterico (9c670f)

  2. Listening to her at oral argument, it’s clear, in political cases, she has an opinion and seeks legal justification from there, even stretching at times.

    Scalia, on the other hand, will beat someone he disagrees with over the head with the law (See Schuette v BAMN for example). The law *forms* his opinion and analysis, so the two justices make good opposites.

    Breyer’s the worst though. He’s very fair and thoughtful in his questioning, and completely disregards the answers he gets.

    JWB (c1c08f)

  3. Are women really so helpless that they can only “control their destiny” if government provides free contraception (i.e. abortion).

    AZ Bob (34bb80)

  4. P.S. I should add: since we don’t have the entire raw footage of the interview, it’s remotely possible that this is a hack job by editors who took a portion of a long answer and condensed it misleadingly. But it’s not unusual for so-called experts who are ideologues to get this wrong; why, Dahlia Lithwick and Sonja West said in Slate that the HHS contraceptive mandate had been declared “unconstitutional” by the majority Justices. Again: these are the “experts.”

    Patterico (9c670f)

  5. Katie Couric, hack edit, only for comprehension.

    narciso (ee1f88)

  6. Speaking of hack jobs, what about the softball questions to Ginsey.

    AZ Bob (34bb80)

  7. “Again: these are the “experts.”…
    this appears to be a recurring problem with our ‘friends’ on the left… 8-)

    redc1c4 (abd49e)

  8. I am impressed that Ginsburg believes if somebody else does not pay for a woman’s contraception that she has no access to it as she implies in the clip. What does she believe was happening before Obamacare?

    She also seems to believe that employment is an involuntary relationship which an employee enters into with an employer, allowing an employer to foist all sorts of abhorrent and noxious terms and conditions and views on employees, rather than a voluntary relationship. The government is attempting to foist its views on employers through Obamacare and some have objected. It is as simple as that.

    daleyrocks (bf33e9)

  9. The more I watch our society unravel, the more it seems that narcissism and emotional reactivity have replaced any thoughtfulness about unintended consequences (including what precedents can be used by those in the future with whom you might disagree). The “take home lesson” is that RBG wants all contraceptives paid for, completely, for all women, right now. And even a minor deviation is considered to be cataclysmically horrific.

    Thinking replaced by bumper stickers. The Twitterization of logic.

    This why SCOTUS issues are so important.

    What a mess.

    Simon Jester (c8876d)

  10. Oh, and I don’t doubt that her law clerk wrote the opinion and gave her a summary.

    Simon Jester (c8876d)

  11. The economic illiteracy of the Left is astonishing. Their underlying assumption is that everyone but themselves is nothing more than a simple robot that (not who) spends its time on earth bouncing off one wall and then another, occasionally finding food, shelter, a caramel frape, employment, contraceptives, and any number of sexual partners. The idea that the twenty dollar bill in a person’s wallet can be spent on any number of different things depending upon that person’s needs and wants escapes our keepers. They are basically trapped in a world where money has yet to be invented.

    We should be grateful that Ginberg intends to hang on as long as possible. HteWon could conceivably replace her with any number of Progressive jurists who would be equally ignorant but more than likely much longer lived.

    bobathome (5ccbd8)

  12. Simon Jester – Ban Pre-2010 speech and thought.

    daleyrocks (bf33e9)

  13. Couric, the pride of UVa, (sigh) famously missed the Solon of Scranton’s legendary FDR gaffe, so something as subtle as this decision, is beyond her understanding. it’s as inane as the ‘pizza analogy’ in King, which did not earn the right level of scorn;

    narciso (ee1f88)

  14. A “right” should never require a financial obligation on someone else’s part.

    “Buy me this.”
    “No.”
    “You’re violating my Constitutional rights!!”

    CrustyB (69f730)

  15. Since two generations of federal judges (and state appellate judges, and law professors) have taught us that the Constitution is an excuse for getting what you want, why not declare an ‘emerging awareness’ that indicates that that language prohibiting a ‘bill of attainder’ no longer means what it says. A vote of a Republican Congress to strip this ghastly woman of her citizenship and deport her to any foreign landfill which will take her would be sweet justice. There are four or five others on that court who merit the same treatment.

    Art Deco (ee8de5)

  16. I’m glad to hear that Justice Ginsburg will be supporting my upcoming lawsuit to remedy the Government’s denial of my Second Amendment rights through refusing to provide me with a free Kimber .45 ACP. There’s one vote down, eight to go.

    Russ from Winterset (830aac)

  17. Damn, I’m an engineer and I understood this. But lay off of Ginsburg. We don’t want her retiring for another few years.

    Kevin M (b357ee)

  18. That’s one old girl who needs to get herself a cat.

    ropelight (36b164)

  19. as long as we’re clear that this vile piece of gristle is trying to influence the midterm elections

    this is yet another reason why nobody respects these berobed sluts anymore

    happyfeet (8ce051)

  20. All is proceeding as the Emperor has foreseen. The more often those who occupy high elected or appointed office are revealed as blithering idiots the sooner Americans will lose confidence in the institutions of representative government and become ever more willing to acquiesce in the proletariat’s inevitable victorious march into a glorious new world order (of course with certain indispensable leaders already at the fore).

    But before paradise can be fully attained, the necessary tasks of clearing out the deadwood, eliminating useless mouths, and proscribing irredeemables must be ruthlessly accomplished in the name of mutual respect and universal brotherhood.

    ropelight (36b164)

  21. “I guess the lesson here is, when speaking on television about a decision that you barely understand because it was written entirely by your law clerk, don’t.”

    More likely Ginsberg is a political animal, not an honest justice, and simply says whatever is most politically useful for today’s propaganda.

    pst314 (ae6bd1)

  22. Do you suppose there’s a JudicioList, where left-wing judges talk about cases? Or would that be wrong?

    Kevin M (b357ee)

  23. How did I survive? It never occurred to me that it was the responsibility of any entity other than myself and my husband to provide (or even subsidize) my contraceptives.

    Good point, # 16. Russ from Winterset, but you’re not going far enough. My ammo isn’t cheap and I had to spend a pretty penny for a concealed carry purse too.

    AZ_Langer (f08ff6)

  24. Dumb judge. Not the first time that’s happened.

    Bob Ellison (03183f)

  25. There is quite often a large disconnect between what’s written in Madame Justice Ginsburg’s opinions and what she says, or even writes, in other public contexts. I don’t think the only, or even most likely explanation, is that she doesn’t know or understand what her law clerks are ghost-writing in her name. I would be very, very surprised by that.

    That seriously underestimates her. Remember that before she went on the bench, she was general counsel for the ACLU. The job of the general counsel of the ACLU isn’t to fight and win particular lawsuits for the organization. It’s to manage public understanding and expectations in a way that will promote the ACLU’s goals. That is to say, it’s as much as public relations job as a law job.

    I disagree with her squarely on a great many important issues, and at least at the margins on almost every other issue. But I credit her with being among the most capable and effective public figures on the Left for the past several decades now.

    She knows, I believe, that Hobby Lobby didn’t turn on constitutional interpretation. She’s intentionally and deliberately conflating the issues. She’s being intentionally disingenuous in this particular context and setting because it suits her team’s goals.

    She’s helping sucker the American public, and she’s particularly good at it because of her position. Her misstatement, of course, will get more publicity than Mr. Frey’s excellent take-down here. She’s counting on that; her teammates count on that. She’s a team player.

    The nature of the SCOTUS is such that she can’t be that ridiculous in what she writes for the Court, whether for a majority, or in concurrence or dissent; she has credibility that she needs to preserve among her colleagues (including Justice Scalia, with whom she and her husband share season tickets to the opera).

    But in the press? Oh, sure. To adapt Prof. Reynold’s description of mainstream media hacks: “She’s a Democratic operative with an ‘opinion by’-line.”

    Beldar (fa637a)

  26. I think the majority opinion in that case, though, did accuse her of misstating what the decision did.

    Sammy Finkelman (5818f3)

  27. What an ethically compromised, senile, and mean-spirited old bat. Long may she rule!

    PubGrinder (5a2acb)

  28. And Clinton’s impeachment was about sex according to most people. Truth is the first casualty of partisanship.

    Kevin M (b357ee)

  29. religion-based accommodations so extreme,

    Who knew that a private citizen refusing to pay for another private citizen’s medical abortion was an extreme accommodation, I sure didn’t.
    One of those words doesn’t mean what one of us thinks it means.

    MD in Philly (f9371b)

  30. But as Beldar and others suggest, it is a bit unnerving to realize that even when we do win a case in court that in the end it seems that it is deception that permeates the public consciousness.

    MD in Philly (f9371b)

  31. The decision that an employer could refuse to cover contraceptives meant that women would have to take care of that for themselves, or the men who care. Contraceptive protection is something that every woman must have access to to control her own destiny.

    Is it not true that the Hobby Lobby exemption only applies to post conception birth control?

    Gerald A (9e3e6a)

  32. I think that is correct, Gerald. I remember reading something about the insurance that Hobby Lobby offered included about 16 (something in the teens, IIRC) types of contraception.

    but facts, shmacts, it’s the narrative that counts.

    MD in Philly (f9371b)

  33. Arguing against a position not held is a practice practiced daily by Obama.

    JD (c41b3d)

  34. you’ll note the perverted chief justice see no reason to rebuke her blatantly politically-motivated lies about the court’s decisions

    the supreme court lol

    happyfeet (8ce051)

  35. Ginsberg looks senile but she may be doing things that are clever. I doubt it.

    Mike K (b5c01a)

  36. *sees* no reason i mean

    happyfeet (8ce051)

  37. I have five takeaways from Ginsburg’s comments to Couric.

    1) What is wrong with a person paying for what they need out of their own pocked? Taken to an extreme, according to Ginsburg the government has the authority under the Constitution to force employers to pay for their employees mortgage/rent, utilities, grocery bill, clothes, all healthcare needs, transportation and anything else that is deemed that a person “must have access to”. Of course, the employer must pay for these things without docking their employees current wages or salary.

    2) If I understand Justice Ginsburg correctly, she is stating that it would be somehow unconstitutional for the government not to guarantee free contraception to women. When she says contraception is something that every women “must have access to” it sounds like that the US Constitution guarantees every women access to contraception by the government.

    3) Of course it wouldn’t be just contraception, but as noted in the first point, it would be unconstitutional for the government not to guarantee anything and everything that a person “must have access to”. If there were five Ruth Bader Ginsburgs on the Court would it be unreasonable to assume that this Ginsburg dominated Court would rule that the federal government must provide all of these things and that if Congress doesn’t act that the President must make sure that people have access to these things independent of Congress? Would a Ginsburg dominated Court rule that the Court can monitor and control the budget and regulations of the federal government to make sure that people are provided those things that all people “must have access to”? A Supreme Court with five Justice Ginsburgs would effectively, in one opinion, transform the US Constitution into the Soviet Constitution.

    4) Correct me if I am wrong, but it seems like Ginsburg is saying that the people in general and employees in particular have the right to foist their beliefs on their employer that do not share those beliefs. If an employee feels that they have a right to use contraception and their employer does not personally believe in contraception that the employee can force the employer to pay for the employee’s contraception directly out of the employer’s pocket.

    5) The fact that so many people buy this garbage is a major indictment on the public education system in this country.

    Joe (33fd9a)

  38. If a man or woman chooses to practice birth control by leaving their clothes on, would the employer be forced to subsidize a clothing allowance?

    JD (c41b3d)

  39. remember the ceo of Yahoo! is also a huge obamawhore herself

    so between marissa and katie and ruthie

    there’s no reason to look at this as anything but crude propaganda

    happyfeet (8ce051)

  40. With the insightful comments above, it would seem that Justice Ginsburg’s comments did not contain enough logic to have holes in.
    But what did we expect from someone who had been a lawyer for Planned Parenthood?
    Can we get a justice who was a lawyer for the NRA, or True the Vote?

    MD in Philly (f9371b)

  41. Thank President Bill Clinton for the RFRA and Hobby Lobby.

    Michael Ejercito (becea5)

  42. The RFRA was in response to the sacramental peyote case. Sure, the left liked it for that reason. The Court didn’t like Congress telling it how to decide First Amendment cases and struck it down as applied to the states. But the Court didn’t go so far as to say that Congress cannot limit its own authority on how far to trespass on religious freedom which is what really annoys Ginsburg. She wants the Court to have the last word. It’s clear in Part III of her dissent which, BTW, nobody else joined.

    nk (dbc370)

  43. …I guess the lesson here is, when speaking on television about a decision that you barely understand because it was written entirely by your law clerk, don’t…

    In her recent Hobby Lobby dissent she wrote about how religious institutions exist to serve coreligionists.

    Mother Theresa can open a hospice in Calcutta without being forced to violate her religious principles. Not here in the land of the free and the home of the brave, however.

    But Justice Ginsburg is smarter than me,how? Christians have been evangelizing non-Christians for, what, a hundred centuries or so? Maybe that’s not your religious tradition. Maybe you don’t have a religious tradition. Fine. OK. But if something isn’t your thing, shouldn’t you still be capable of grasping the concept, if you’re going to be a judge?

    And why are we putting up with this?

    Steve57 (52a6eb)

  44. If a man or woman chooses to practice birth control by leaving their clothes on, would the employer be forced to subsidize a clothing allowance?

    JD (c41b3d) — 8/1/2014 @ 7:21 pm

    A paper justice Ginsburg coauthored states that the age of concent be lowered to the age of 12. She also believes that prostitution should be legal. She definitely does not have mainstream views. Teach men not to rape, return rape to a death penalty offense, and of course the least expensive form of birth control is to not have sex at all. No pregnancies or STDs to worry about, just self control. Best thing about abstinence, it’s free.

    Tanny O'Haley (87b2aa)

  45. It’s to manage public understanding and expectations in a way that will promote the ACLU’s goals. That is to say, it’s as much as public relations job as a law job.

    Given the ACLU’s agenda, she’s plain evil.

    Art Deco (ee8de5)

  46. She’s well past her sell date, but we need to keep her around to prevent something worse from filling her seat.

    askeptic (efcf22)

  47. you’ll note the perverted chief justice see no reason to rebuke her blatantly politically-motivated lies about the court’s decisions

    It’s not his place to rebuke her.

    Milhouse (9d71c3)

  48. But Justice Ginsburg is smarter than me,how? Christians have been evangelizing non-Christians for, what, a hundred centuries or so?

    Only twenty.

    Milhouse (9d71c3)

  49. It’s to manage public understanding and expectations in a way that will promote the ACLU’s goals. That is to say, it’s as much as public relations job as a law job.

    Given the ACLU’s agenda, she’s plain evil.

    The ACLU does a lot of good. In my opinion the bad it does slightly outweighs the good, but we must not forget that it is a stalwart defender of freedom of speech for everybody, and of the free exercise of religion (so long as it isn’t in public).

    Milhouse (9d71c3)

  50. I’m sorry Milhouse, but the ACLU has been on a slow slide for a long time now. It will give up the first amendment as soon as it can.

    Ag80 (eb6ffa)

  51. She’s well past her sell date, but we need to keep her around to prevent something worse from filling her seat.

    Sell-by dates are just the manufacturer’s unsupported opinion, and thus meaningless.

    Milhouse (9d71c3)

  52. I’m sorry Milhouse, but the ACLU has been on a slow slide for a long time now. It will give up the first amendment as soon as it can.

    Maybe it will, but it hasn’t yet, and so long as it doesn’t we can’t write it off. (The only flaw in its first amendment activism is that when someone wants to exercise their religion on public property, the ACLU weighs in on the wrong side.)

    Milhouse (9d71c3)

  53. Yeah, they are disestablishment all the way to the their pet issues and then they want the courts to be the head priests of ACLUism. This is a pretty good example. Ginsburg is upset that the RFRA limits the ACA.

    – But Justice Ginsburg, they’re both acts of Congress. Surely Congress can limit its own trespass on religious freedoms?
    – Only to the extent the Supreme Court says it can.
    – Seriously?
    – Sure. How else will taxpayers pay for abortions?
    – You know, nobody on the Hobby Lobby opinion joined part III of your dissent where you say that.
    – I’ve always known I’m the only person with any brains in that place.
    – Err ….
    – You don’t think I got to where I am on looks, do you?

    nk (dbc370)

  54. but we must not forget that it is a stalwart defender of freedom of speech for everybody

    Take a look at some old columns by Nat Hentoff and Alan Dershowitz on that subject. Not true.

    Art Deco (ee8de5)


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