Sunday, July 06, 2014

Radical Republican Roberts Court judicial activism

David Dayen writes in Supreme Court's out-of-control spiral: Ideologues rewriting their own laws Salon 07/02/2014 about the arbitrariness of the Roberts Supreme Court in its Hobby Lobby decision:

First of all, Alito found that, for the purposes of the Religious Freedom Restoration Act of 1993, corporations are not just people, but people with religious beliefs, granting them the right to free exercise of that religion, which the contraception mandate "substantially burdens." But Alito clearly worried about a slippery slope, where suddenly religious corporations would ignore all sorts of laws by invoking their conscience. So he drew a completely arbitrary line. ...

In the opinion, Alito writes, “our decision in these cases is solely concerned with the contraception mandate.” ...

As Kevin Drum notes, this is a very "Bush v. Gore" type of effort, where the majority, as they’re writing the ruling, warn everyone to never use it as precedent. Not only is this not how the law works, the randomness of the distinction makes no sense: Indeed, contraception plays a major role in stopping the spread of infectious diseases!

Justice Alito boiled down all religious sentiment into caring about whether women have too much unauthorized sex. He actually picks and chooses among religions, essentially saying that only beliefs about abortion matter in the religious liberty context. Furthermore, the ruling ignores science, by associating contraception with abortifacients.
This arbitrariness, and the Court's willing to take such innovative steps with a bare 5-4 majority is a sign of the genuine radicalism of this Court. Justices Roberts, Alito, Scalia and Thomas are basically hardcore partisan radicals. All of them, probably not coincidentally, also conservative Catholics. Kennedy is another conservative Catholic who was willing to join them on the Hobby Lobby travesty.

As David puts it, "Dahlia Lithwick calls the Roberts court 'the most hands-on hands-off court in America.' You could also call it passive-aggressive. They chip away at decades of established precedent inch by inch, using absurd eccentricities to protect their credibility."

It's important to recognize the genuine radicalism of this Court. As Justice Ginsburg's dissent explained in some detail, there interpretation of the Religious Freedom Restoration Act (RFRA) made it into something like the opposite of what its purpose and clear legislative intent were.

When the Supreme Court is doing its job, it has been a supporter of important Constitutional rights against Executive and Congressional overreach.

When it becomes dominated by ideologues like the current Court has, you get decisions like Bush v. Gore, Citizens United and Hobby Lobby. President Obama criticized the Citizens United decision before the members of the Supreme Court during a State of the Union Address. He said at the time in a message, "This ruling strikes at our democracy itself."

The Republicans have pursued a double strategy: constantly criticizing "activist" liberal judges while working a long game to pack the federal courts with Federalist Society ideologues that would be the most arbitrary kind of activist judges.

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