Pay more attention to the courts or cede them to the extreme right
You’ve probably heard by now of yesterday’s disturbing U.S. Supreme Court ruling in the case of Burwell v. Hobby Lobby. In a narrow 5-4 decision, the conservative majority of the Court ruled that the craft store chain is exempt from the employer-mandate of the Affordable Care Act to include coverage for contraceptive services in the health insurance plans provided to employees. According to the majority, such a mandate violates the company owners’ religious freedom. Though characterized by some as being of limited impact, it’s hard not to see the ruling as far-reaching and extremely destructive.
“The Court’s Hobby Lobby ruling shows just how far the Roberts Court will go to give corporations even more power. Religious liberty is a fundamental right that must be honored to ensure that individuals can freely exercise their beliefs. The right to the free exercise of religion has never been a right that secular for-profit corporations have possessed. It has never been part of religious liberty for a business to foist its owner’s religious views on its employees or customers.
Expanding religious liberty to corporations cheapens religious liberty for everyone. This expansion will allow corporations to claim that their religion entitles them to impose the beliefs of their owners on employees. But why should employees’ rights be so limited? Women’s access to contraception, with its numerous health benefits, is particularly negatively affected by this decision, which dramatically changes corporate governance structure, opens the door to a wide and dangerous range of potentially discriminatory tactics, and allows bosses to pick and choose what medical services they deem are appropriate for their employees.
Religious liberty should mean religious liberty for everyone, employees as well. This ruling puts this important American value in danger and is judicial activism at its worst.”
Where does this stop?
As Justice Ruth Bader Ginsburg wrote in a scathing dissent to the Court’s ruling, the implications for individual Americans as they relate to corporations is extremely worrisome. Ginsburg said the decision is one “of startling breadth” and that it will allow corporations to opt out of almost any law that they find “incompatible with their sincerely held religious beliefs.”
“Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage…or according women equal pay for substantially similar work….”
Moreover, if the Court’s decision is taken to its natural conclusions (and you can rest assured that many will attempt to make that happen), America is now operating under a profoundly different concept of religious liberty – one that’s predicated much less on individual freedom and much more on the “rights” of powerful groups and individuals to impose their “freedoms” on others.
Taking back the courts
Of course, one of the most frustrating things about reactionary Supreme Court decisions is that they don’t lend themselves to easy reversal. Constitutional amendments are virtually impossible to enact and it often takes decades at best for the Court to get around to overturning its most disastrous precedents. Acts of Congress can sometimes provide relief, but as a general matter, there simply aren’t many quick fixes around which to rally the troops.
So, what to do?
The most important answer to that question is for progressives to acknowledge the power of the courts and commit themselves to changing their composition going forward. Ultimately, the Hobby Lobby decision and others like it – e.g. Citizens United, McCutcheon v. FEC and Town of Greece v. Galloway – are the byproducts of the judges who make up the judiciary.
And, on this front, there’s no getting around the fact that many caring and thinking people have been asleep at the wheel. For decades, progressives have devoted precious little political energy and capital to the composition of the courts – opting rather to defer to bar associations and other “neutral” organizations. Notwithstanding the occasional ideological battles over especially reactionary nominees like Robert Bork, for the most part, it is conservatives who have made influencing judicial nominations a top priority.
And as just about any U.S. Senator can tell you, the right’s efforts have, unfortunately, had an impact. Whenever a person is nominated to the federal bench anywhere in the country, one can count on the fact that business lobbies, the religious right and gun advocates will weigh in regularly and loudly.
And while, obviously, the most important factor in all judicial nominations remains the identity and philosophy of the president making them, it’s important not to underestimate the cumulative effect of loud and persistent advocacy. America’s courts – both federal and state – are significantly more ideological and conservative in 2014 than they would be had the right not invested decades of effort and millions of dollars to make them that way.
A case in point: The Burr blockade
A classic example of how this type of hardball politics often plays out is on display right now in North Carolina. Last week marked the one-year anniversary of Senator Richard Burr’s silent, one-man filibuster of President Obama’s nomination of veteran federal prosecutor Jennifer May-Parker to serve as the first African-American federal judge in the history of the Eastern District of North Carolina. As has been reported in this space on numerous occasions, not only is Burr refusing to give his approval so that May-Parker’s nomination can be considered by the Senate Judiciary Committee (something that Senate practice currently requires from both home state senators), he’s refusing to say why. And to make matters even more maddening, Burr previously recommended May-Parker for the job at the outset of the Obama administration!
Clearly, Burr’s actions are the result of right-wing political pressure – both on him and Republican leaders — to block Obama nominations at every possible turn. As the Why Courts Matter website has documented, the pattern has been replicated in state after state.
That said, it’s also worth noting that recent and concerted efforts by the U.S. civil rights community and other progressives to push for solid and fair-minded judges have started to have an impact. As this article notes, this has been especially true during the first year-plus of the President’s second term. Simply put, after taking it on the chin for many years, progressives have begun to push back. In several states in which other conservative senators have tried Burr’s stonewalling tactics, progressive advocates on the ground have organized and made it politically impossible for the blockades to stick.
Whether Senator Burr’s blockade of Jennifer May-Parker will be lifted anytime soon is hard to predict. North Carolina civil rights groups will be renewing their advocacy efforts this week by delivering a letter to Senate Judiciary Committee chairman Patrick Leahy asking that he dispense with the requirement that Burr give his approval – at least in part on the grounds that the senator has forfeited any entitlement to such a courtesy with his utter refusal to explain his blockade.
Regardless, however, of the outcome in this single case, it’s clear that a course is being charted for the kind of advocacy that needs to happen on a consistent basis going forward. If progressives want to push back against the conservative efforts to control the judiciary and, ultimately, secure the reversal of rulings like Burwell v. Hobby Lobby, the path is clear and the time for action is now.