Culture Wars, Polarization and SCOTUS

July 2, 2014

Are we in Dred Scott territory yet?

Not quite.

Chief Justice Taney back in 1857 was determined to settle the slavery question once and for all; he could have just dismissed the case for lack of jurisdiction, the plaintiff not being a “citizen of any state,” but instead he went on to discuss the merits at great length, so there would be no doubt. The effect of course was to enrage the North and help bring on the Civil War.

The Roberts Court in contrast is issuing opinions so closely tailored, so moderate and judicious, that Justice Scalia has taken to issuing very angry concurrences arguing that the official reasoning doesn’t go far enough. Last week the Court invalidated the Massachusetts 35-foot buffer zone around abortion clinics, but left plenty of space (so to speak) for the State to adopt less drastic measures focused on actual harassment. Women’s groups are understandably outraged at losing their 35-foot safety zone, but Scalia seemed just as outraged that Roberts didn’t strike down the very idea of protecting abortion clinics. The same day, the majority ruled against the President’s power to make “recess appointments” in the three-day gaps in “pro forma” Senate sessions; but it didn’t insist (as Scalia would have) that the only valid “recess” was the adjournment at the end of the year. A ten-day gap along the way, the majority indicated, might pass muster.

OK, the Court is trying to be reasonable, nothing wrong with that. But it’s getting harder and harder to pull off. This week, on the last day of their term, they had a chance to overrule a precedent allowing certain union fees to be imposed on public service employees who are not members of the union. They avoided going that far, by pulling out of its collective hat a new category of “partial public employees” to cover the home-care workers involved in the case at hand.

And of course there’s Hobby Lobby – totally outrageous to everyone on my side of the political spectrum, and still “not as bad as it might have been” thanks to some clever legal footwork. For one thing, the Court did not decide the case under the First Amendment, but rather the Religious Freedom Restoration Act, one of those dumb things (like DOMA) that the Clinton-era Democratic Congress passed to show that they weren’t “crazy leftists” out of touch with “middle American values.” This means once we get a really progressive majority elected to Congress, the thing can just be repealed and Hobby Lobby will be out in the cold.

– As to the absurdity of a corporate “person” having religious views, the Court dealt with that by singling out “closely held corporations” which can be regarded as a kind of extension of their owners. Now this kind of “corporate personhood” isn’t quite the same as what Citizens United was about; that followed a more traditional notion of the corporation as an entity distinct from its owners. What will this new argument mean for the “corporate veil”? Who knows? Sufficient unto the day is the evil thereof.

– And the Court insists that its ruling is only about contraception, and doesn’t address other issues like whether the Jehovah’s Witnesses have the right not to pay for employees’ blood transfusions, or whether anyone has the right to discriminate against gay people. At first glance this looks like mere handwaving, but really when you look at the opinion itself it finally comes down where it does by invoking as a “less restrictive alternative” the allowance the administration has already made in the case of churches and religious non-profits, which is supposed to give employees full contraceptive benefits without the employers having to get their hands dirty. So it really is a very narrow opinion, the Court is doing its best not to be outrageous – they just can’t bring it off. They can’t see that in the eyes of a growing majority of Americans, any claimed “right” to discriminate against women is unacceptable, and any right of an employer to “conscientiously” object to paying a mandated benefit is unacceptable.

Also there are voices pointing out that all this fuss would be unnecessary if we had a single payer health care system and employers were out of the loop altogether.

So yes, we’re as polarized as in the 1850’s, and no compromise is possible any longer between the forces of progress and of reaction; the most earnest efforts by Roberts and Alito not to be Taney are doomed to failure. We won’t have another Civil War, because the sides don’t align this time into states capable of raising their own armies. But either the country will be gridlocked forever, or one side will somehow manage to win; and demographics would indicate that it will be the side of progress.

 

 

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