The Commentariat -- July 1, 2014
Internal links removed.
A Rotten Day for Poor Working Women *
Lyle Denniston of ScotusBlog: "In an opinion filled with strongly implied invitations to file a new case to go even further, the Supreme Court, dividing five to four, ruled on Monday that public employees cannot routinely be required to join labor unions or to support them by paying dues. If state or local government workers who oppose unionism take the hint, this new decision may well spawn new lawsuits that could spell doom for organizing those workers for collective action."
Here's a statement by President Obama's press secretary criticizing the ruling.
Noah Feldman in Bloomberg View: "The unions averted, for now, a far greater disaster: the possibility that the court would reverse its precedent and hold that no public employees at all can be made to contribute to unions' collective-bargaining costs. That result could've broken many public unions. But the sword of Damocles still hangs over them." Feldman has a good, brief explanation of the case that informs Harris: Abood v. Detroit Board of Education. ...
Laurence Tribe in Slate: "... Alito and the conservative majority treated employees who were compelled to pay union fees as if they were being dragooned into involuntary association. This can hardly be described as a natural interpretation of the economic reality, much less the only plausible one.... Most broadly, Harris is the latest chapter in the troubling story of the Roberts court indulging attenuated constitutional arguments against economic regulation.... The Roberts court seems to be forgetting one of the principal lessons of constitutionalism since the New Deal: Economic policy should be made by legislatures, not courts." CW: Yeah, Larry, and what you are forgetting is that Johnnie & His Supremes find the New Deal abhorrent, & they fully intend to overturn it, bit by bit. ...
... Emily Bazelon of Slate: "... for people with disabilities who want to live on their own, and the workers who make that possible, it's a real blow." ...
... New York Times Editors: "... there was no mistaking the ominous antipathy toward collective bargaining and workers' rights behind Justice Samuel Alito Jr.'s majority opinion, which was joined by the four conservative members of the court."
Amy Howe of ScotusBlog explains the Hobby Lobby decision "in plain English.... Today's decision is an unqualified victory for Hobby Lobby, Conestoga, and the families that own them. The companies can provide their female employees with health insurance, and that health insurance can include access to some forms of birth control, but they are not required to violate their religious beliefs by subsidizing forms of birth control that they believe would make them complicit in abortions."
Molly Redden in Mother Jones: "Health care experts say [the Obama] administration can cover woman affected by today's ruling similar to how it currently covers women working for nonprofit, religiously affiliated organizations.... Indeed, the five justices who ruled in favor of Hobby Lobby made the accommodation a key piece of their decision." ...
... CW: That seems fair. We taxpayers pick up the tab for all of the for-profit companies that claim a religious exemption (70 have already challenged the ACA contraceptive mandate). ...
... BUT Lyle Denniston argues that Hobby Lobby didn't solve anything, as companies like Hobby Lobby are unlikely to file the necessary forms that would allow a (federally-subsidized) "middle man" or the federal government to provide contraceptive coverage. CW: Yay! More lawsuits in the service of injustice. ...
... Robert Pear of the New York Times: "Battles over health care and religious rights are sure to continue.... About 50 cases involving nonprofit organizations and a similar number involving for-profit companies are pending in federal courts around the country, and many of those plaintiffs intend to push forward with the argument that they should be able to opt out of providing or authorizing coverage that conflicts with their religious beliefs." ...
... CW: Pear points out (as does Denniston) that non-profits have filed suit against accepting the Obama administration's "accommodation" to their religious beliefs. In the most prominent suit, that brought by the Little Sisters of the Poor, the Sisters claim that the accommodation requires them to "... deputize a third party to sin on their behalf." Here is where both Alito & Kennedy are too cute by half. They write that the accommodation for nonprofits would work well for for-profit corporations, too, never acknowledging that the very method they recommend is the subject of several pending lawsuits. (Update: Garrett Epps of the Atlantic: "... at oral argument Hobby Lobby's lawyer had refused to stipulate that his clients would accept it.") In this regard, Alito actually taunts the administration: "'We do not decide today whether an approach of this type complies' with the Religious Freedom Restoration Act for all purposes," he writes. In other words, we're recommending a way to remedy our ruling today, but we'll find that way unconstitutional next year.
Sahil Kapur of TPM: "The White House on Monday afternoon called on Congress to 'take action to solve [the] problem' created by the Supreme Court in its ruling that closely held corporations cannot be forced to comply with the contraception mandate under Obamacare. 'Today's decision jeopardizes the health of women that are employed by these companies,' White House spokesman Josh Earnest told reporters. He added: 'We believe that a company should not be able to assert their views to deny employees federally mandated coverage.'"
I will work with my colleagues and the administration to protect this access, regardless of who signs your paycheck. Since the Supreme Court decided it will not protect women's access to health care, I will. -- Sen. Patty Murray (D-Wash.)
Birth control costs about $600 a year. That financially impacts women; it prevents them from being able to join the middle class. Let's keep in mind, birth control has affected women economically positively since its creation, and this is going to turn the dial back. -- Rep. Debbie Wasserman Schultz (D-Fla.), Chair of the Democratic National Committee
Paige Cunningham & Seung Min Kim of Politico: "The Burwell v. Hobby Lobby decision deepened partisan division in Congress over the government's role in health care with Republicans praising the ruling for protecting religious freedom and Democrats panning it for intruding into women's health care decisions -- and promising legislation to try to restore the coverage." ...
... Karie Glueck of Politico: "Hillary Clinton on Monday called the Supreme Court's ruling in the contraception-related Hobby Lobby case 'deeply disturbing.'" ...
... David Firestone of the New York Times: "This was a political decision and it is absolutely proper for Democrats to use it as a weapon in the midterm election campaign. Minutes after the court ruled that closely held corporations have religious rights that permit them to deny contraceptive benefits to employees, Democrats made clear that they would use the case to remind women of the personal consequences of this kind of conservative ideology.... The court based its decision not on a Constitutional principle but on an act of Congress, the Religious Freedom Restoration Act of 1993. Acts of Congress can be overturned or changed if the right lawmakers are in place, and Hobby Lobby is a good reminder to voters that important policies are often not in the hands of nine justices, but in their own." ...
... Jeff Toobin: "When it comes to the most fundamental issues before the court, the most important factor is not the legal arguments but the identity of the judges -- and the presidents who appointed them."
... our decision in these cases is concerned solely with the contraceptive mandate. -- Justice Sam Alito, writing for the majority in the Hobby Lobby case. ...
... Kevin Drum: "Basically, [Alito is] making the case that abortion is unique as a religious issue. If you object to anything else on a religious basis, you're probably out of luck. But if you object to abortion on religious grounds, you will be given every possible consideration. Even if your objection is only related to abortion in the most tenuous imaginable way -- as it is here, where IUDs are considered to be abortifacients for highly idiosyncratic doctrinal reasons — it will be treated with the utmost deference. This is not a ruling that upholds religious liberty. It is a ruling that specifically enshrines opposition to abortion as the most important religious liberty in America."
** Ian MillHiser of Think Progress: "For many years, the Supreme Court struck a careful balance between protecting religious liberty and maintaining the rule of law in a pluralistic society.... With Monday's decision in Burwell v. Hobby Lobby, however, this careful balance has been upended.... The upshot of Alito's opinion is that, for the first time in American history, people with religious objections to the law will be able to ignore many laws with impunity unless the government's decision to enforce the law overcomes a very high legal bar that few laws survive." ...
... ** Scott Lemieux in the American Prospect: "While the burden of the contraceptive 'mandate' on employers is trivial, the burden the majority's exemption creates on employees is substantial. By holding that the former trumps the latter, the majority goes far beyond what Congress intended in RFRA." ...
... New York Times Editors: "The Supreme Court's deeply dismaying decision on Monday in the Hobby Lobby case swept aside accepted principles of corporate law and religious liberty to grant owners of closely held, for-profit companies an unprecedented right to impose their religious views on employees." ...
... Dana Milbank highlights the majority's twisted logic in attributing religious beliefs to what Justice Ginberg noted was, in the words of Chief Justice John Marshall (the 4th U.S. chief justice), "an artificial being, invisible, intangible, and existing only in contemplation of law." (CW: So much for originalism.) Milbank adds, "There was a certain risk in having Alito deliver the 5-to-4 opinion defending corporate personhood, because his mannerisms are strikingly robotic for a human. Assigned both of Monday's opinions, Alito delivered a 33-minute monologue — his only departure from the text before him was to raise his head mechanically at intervals and glance at a table to his right."
... Digby: "When [the Supremes] go to such lengths to soothe people that they aren't setting a hugely significant precedent that makes little sense, that's what they're doing."
Amy Davidson of the New Yorker: "What other companies can ignore which other laws on what real or dreamed-up religious grounds? That is something the majority decision in Hobby Lobby leaves shockingly undefined. Ginsburg called it 'a decision of startling breadth,' one that could allow for-profit corporations to 'opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.' Alito, in his opinion, denies this; so does Anthony Kennedy, in a concurrence. But neither does so persuasively...."
Sandra Fluke in the Washington Post: "Some imagine closely held corporations as family-run small business. Actually, closely held corporations make up more than 90 percent of the businesses in this country. They employ 52 percent of the labor force, and the 224 largest closely held corporations had combined revenues of $1.6 trillion in 2013. Some of these companies include Dell, Toys 'R' Us, Heinz, Dole Foods, Petco, Stater Bros and yes, even Koch Industries."
Sally Kohn of the Daily Beast: "Reliance on junk science, backwards ideas about religious freedom -- it's all there in the conservative majority's awful Hobby Lobby ruling."
Approving some religious claims while deeming others unworthy of accommodation could be 'perceived as favoring one religion over another,' the very 'risk the [Constitution's] Establishment Clause was designed to preclude. -- Justice Ruth Bader Ginsburg, in her dissent
... Jay Michaelson of the Daily Beast: "... as Justice Ginsberg ... writes, in holding that Hobby Lobby is entitled to its own factual universe, in which contraceptives cause abortion and providing insurance is the same as using it, the Court has opened the door to any number of wild religious claims." ...
... Papists! Charles Pierce: "Right up through the Court's decision today, in practice, the RFRA has been repurposed to establish a privileged position within the law to a certain set of religious beliefs -- those beliefs curiously coinciding with the political movement in which several of the Justices were formed. And, again, it's not like nobody saw this coming, either. In his Memorial And Remonstrance Against Religious Assessments, [James] Madison warned against privileging one set of religious beliefs over the other."
Steve M. "The decision just reeks of ignorance, paternalism, contempt, and condescension. And I don't think either conservatives or political insiders quite get that. They can't imagine that this comes off as a double whammy of woman-shaming and cheapness, with bosses in a crappy economy denying female workers one more crumb and saying they're doing it because anyone who wants that crumb is morally contemptible."
Yeah, BUT. Kate Pickert of Time offers "4 reasons the ruling means less than you think." CW: Pickert apparently takes Alito at his word & pays no attention to Ginberg's dissent. Moreover, she seems completely ignorant of Roberts' predilection for dismantling protections for ordinary Americans piecemeal fashion. Otherwise, an insightful post! Update: See also Jeff Toobin post following links re: the Hobby Lobby decision.
Jonathan Cohn of the New Republic: "The obvious solution to this dilemma is to take health insurance away from employers altogether.... But the people and groups who oppose government's providing insurance directly tend to be the same people who object to the contraception mandate. That's not a coincidence. While I don't doubt the religious objections to birth control are sincere, I do think they are masking another belief conservatives bring to this debate: As a general rule, conservatives don't think government should be compelling them to pay for other people's medical expenses."
No, people, #5OldBigots do not run ScotusBlog.
** Jeff Toobin in the New Yorker: "The Supreme Court concluded its term today with a pair of decisions widely described as 'narrow' -- that is, of limited application except to the parties in the lawsuits. Don't believe it. In fact, the Court's decisions in Burwell v. Hobby Lobby and Harris v. Quinn conform to an established pattern for the Roberts Court. It's generally a two-step process: in confronting a politically charged issue, the court first decides a case in a 'narrow' way, but then uses that decision as a precedent to move in a more dramatic, conservative direction in a subsequent case." ...
... Garrett Epps of the Atlantic on "the Supreme Court's cold indifference to America's workers.... Both opinions are like time bombs; they will keep exploding for a number of terms to come. The majority, meanwhile, seems to be having fun."
* Of course not all home healthcare workers are women, but "more than 90 percent ... are women. About 30 percent are black, and 12 percent are Hispanic." Hobby Lobby pays better than companies that require similar work, & workers get Sundays off. Also, they begin every staff meeting with a Christian prayer. AND they play Christian music! Hallelujah! Sam Alito might like cute little puppies, but he has nothing but contempt for poor- & lower-middle-class working women.
Jennifer Epstein of Politico: "President Barack Obama said Monday that the White House is preparing an executive order banning job discrimination among federal employees on the basis of gender identity. Obama mentioned the planned measure while addressing a White House reception marking LGBT Pride Month. The White House announced earlier this month that the president also intends to sign an executive order banning federal contractors from discriminating against employees on the basis of their sexual orientation or gender identity -- a measure for which LGBT rights groups have long clamored":
Jennifer Epstein of Politico: "President Barack Obama announced his intention Monday to nominate former Procter & Gamble executive Robert McDonald to lead the Department of Veterans Affairs, as he vowed to continue to push to reform the troubled agency":
Tom Cohen & Cassie Spodak of CNN: "It's their fault, President Barack Obama said Monday in blaming Republican inaction on immigration reform for escalating problems including a surge of undocumented children crossing the border from Mexico." CW: An excellent get-off-your-ass speech:
... New York Times Editors: "It says a lot about the state of immigration politics that Republicans instantly rejected Mr. Obama's demand for reform but that many may be only too happy to help him deport more children."
Snowden, Ctd. Ellen Nakashima & Barton Gellman of the Washington Post: "Virtually no foreign government is off-limits for the National Security Agency, which has been authorized to intercept information 'concerning' all but four countries, according to top-secret documents. The United States has long had broad no-spying arrangements with those four countries -- Britain, Canada, Australia and New Zealand — in a group known collectively with the United States as the Five Eyes. But a classified 2010 legal certification and other documents indicate the NSA has been given a far more elastic authority than previously known, one that allows it to intercept through U.S. companies not just the communications of its overseas targets but any communications about its targets as well."
We Look Beyond the Beltway
For a Little Levity & Good News
Greg Hilburn of the Monroe, Louisiana News Star: "The Kissing Congressman, "Fifth District U.S. Rep. Vance McAllister, will seek re-election, reversing course after previously saying he wouldn't be a candidate.McAllister made his official announcement during a news conference Monday.... More than 75 supporters greeted him with enthusiastic applause.... The freshman congressman had previously said he wouldn't seek re-election following a scandal in which a video was published showing the married McAllister kissing a former married staffer, but he soon recanted." ...
... Alexander Burns of Politico: "Louisiana Rep. Vance McAllister has no shortage of problems in his surprise bid for reelection: Party leaders loathe him, aggressive challengers have already stepped up within the GOP and that nickname – 'The Kissing Congressman' -- that won't go away. And then there's the matter of McAllister's debt. The wealthy Louisiana lawmaker who won his seat in a special election last November now starts his comeback bid carrying hundreds of thousands of dollars in financial liabilities on his campaign account. At the end of March -- before the revelation of McAllister's extramarital dalliance with a congressional staffer -- the Republican's campaign reported owing $207,275 to a variety of political consultancies and law firms. His campaign also owed $395,000 to McAllister, who took out a massive personal loan in the midst of his self-funded special election campaign." CW: This guy is so qualified to represent the people.
Sam Hall of the Jackson, Mississippi, Clarion-Ledger: "The chairman of the Mississippi Federation of College Republicans [Evan Alvarez] has resigned his post and 'will be changing my party affiliation to Democrat in the next few days.'" CW: Hall's report makes pretty clear that Alvarez's decision was precipitated by friction with teabaggers in the organization, but Alvarez's statement announcing his resignation, which appears at the end of Hall's report, is well worth a read. He cites multiple examples of what is wrong with the GOP, every one of which most of us would agree with. Democrats aren't going to be turning Mississippi blue anytime soon, but Alvarez's statement shows that Democrats -- or at least "reasonable" Republicans -- have a chance with white Mississippians.
Rene Stutzman of the Orlando Sentinel: "A Sanford judge [Monday] put an end to George Zimmerman's libel suit against NBC Universal. Circuit Judge Debra S. Nelson ruled that the former Neighborhood Watch volunteer is entitled to no money from the media giant. She issued a summary judgment in the network's favor, meaning that unless an appeals court reverses her, the case is now dead." Via Joe Coscarelli of New York.
News Ledes
New York Times: "Paul Mazursky, an innovative director and screenwriter who both satirized and sympathized with America's panorama of social upheavals in the late 1960s and '70s in films that included 'Bob & Carol & Ted & Alice,' 'Blume in Love' and 'An Unmarried Woman,' died on Monday in Los Angeles. He was 84.
Guardian: "General Motors's safety crisis over deadly ignition switches has deepened with the recall of 8.23m cars linked by the carmaker to three deaths. The latest recalls, which now total 29m this year, boosted the number of deaths acknowledged by GM to at least 16 in cars with switch-related problems. The automaker said it now knows of 61 crashes tied to faulty ignition switches, although US lawmakers and safety regulators have said they expect the death toll to climb."
Washington Post: "Israeli aircraft pounded dozens of targets in the Gaza Strip early Tuesday after vowing to extract a heavy price from the Palestinian militant group Hamas, which it accuses of killing three kidnapped Israeli teenagers on the West Bank." ...
... Washington Post: "President Barack Obama is condemning what he calls a 'senseless act of terror against innocent youth' in the Mideast and offering U.S. help to find those who killed three teenagers. Obama is extending condolences to the families of the teens found by the Israeli military on Monday, two weeks after they were allegedly abducted by Hamas militants."
Washington Post: "President Obama has authorized another 200 U.S. troops to secure the American Embassy in Iraq as well as Baghdad's international airport, bringing the total U.S. deployments to Iraq this month to 775."
Reuters: "Ukrainian forces struck at pro-Russian separatist bases in eastern regions with air and artillery strikes on Tuesday after President Petro Poroshenko announced he would not renew a ceasefire but go on the offensive to rid Ukraine of 'parasites'. Within hours of Poroshenko's early morning announcement, the military went into action against rebel bases and checkpoints in the east which has been in separatist ferment since April."
AP: "Former French President Nicolas Sarkozy has been detained and was reportedly being questioned by financial investigators Tuesday in a corruption probe that is rattling France's conservative political establishment. A judicial official said Sarkozy was in custody in the Paris suburb of Nanterre." CW: So the French aren't so genteel, after all. We would never have the bad manners to take our criminal ex-presidents & veeps into custody for questioning. Unfortunately.