Have We Ever Seen Such Craziness?
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A Few More Notes on the Hobby Lobby Business

All amusement and horror at things like Hillary Clinton's weird spiel aside, the thing that bothers me most about the left's reaction to any major Supreme Court decision, whether they consider it a win or a loss for their side, is a seriously messed-up notion of what the Court is. I first noticed this (and wrote about it in Caelum et Terra) over twenty years ago. It's the idea that the Court is a sort of council of tribal elders who, when there is a disagreement among the people, put their wise old heads together and decide what is right: nine Solomons. Or, as I put it in that CetT piece, nine popes without a God.

Here's Charles Cooke, at National Review Online: 

One cannot help but wonder whether [Nicholas] Kristof and [Harry] Reid are aware of what the Supreme Court actually does — which, as anybody who has even a fleeting grasp of American civics knows, is not to set American policy, on health or anything else, but to interpret and uphold the law. In this particular case, the justices were called to judge whether a mandate that was pushed out by the Obama administration in 2012 was in conflict with another law, the Religious Freedom Restoration Act, that was added to the books in 1992. This being so, the degree to which those who decided the case are “experts on women’s health” is wholly immaterial. The justices are jurists not doctors — they are nine appointed attorneys whose role in the American settlement is to provide legal answers to legal questions. 


Cooke is English, and clearly understands the American system a lot better than many of us do.

Cooke and Kevin Williamson are two young(er) writers who have been making National Review more interesting recently. They're sharp-witted and write engagingly. Here's Williamson on the whole folly of making health care the responsibility of the employer and the state;  it's a snarky piece, and generally I try to avoid indulging in snark, or propagating it, but this instance pretty much cries out for it:

Progressives mad about Hobby Lobby started a campaign under the motto: “Not my boss’s business.” But Obamacare makes it — pardon me for noticing — literally your boss’s business. And I don’t mean “literally” the way Joe Biden uses it; I mean “literally” the way literally literate people use it. The alternative is this: Your money, your pills, your call. If what you care about is access to contraception, then that’s a pretty good model. If what you care about is using the levers of the state to force moral uniformity on the entire country so that atavistic Evangelical types have to knuckle under to your demands — well, you lost.


I don't particulary like that "well, you lost"--chances are excellent that it will be we who lose next time.  But what precedes it is accurate. I've been thinking (and saying) for some years now that only a willingness to allow legitimate diversity on questions like this will keep the country from coming apart.

And by the way: isn't "Keep Your Rosaries Off My Ovaries" about the most nonesensical slogan ever to achieve wide popularity?


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Well, as to your first point, you are absolutely correct, both about what the court does, and the fact that nobody who pays attention to any public discourse about the court would be able to deduce the court's appointed role.

WRT to the slogan, is that what happens when the long arm of government reaches into women's bodies.


Sometimes "lol" is simply the truth.

Good. Now I can go to bed knowing I've done my work for the day.


“Not my boss’s business.”

was an even more stupid slogan than

"Keep Your Rosaries Off My Ovaries"

For while the first slogan makes sense and the second is ludicrous, the first slogan actually undermines their own POV! It's quite hilarious.

(Initially I inadvertently typed POX. Freudian slip?)

I guess it's the difference between stupid (the first one) and nonsensical (the second one).

In a well-ordered world, case law consists of interstitial matters only of much interest to the parties to a dispute and working lawyers looking for precedent. The generation of liberal legal scholars to which Archibald Cox belonged may have looked at it that way. They're all dead now. The modal disposition now is that case law is simply a rubric under which you get what you want. They then persuade themselves that what they want is constitutionally required. We live in a low and dishonest age.

Robert Bork offered a diagnosis that this has to do with the dynamics of social class competition and the staged disappearance of a democratic culture (and integrity) among the class of which the legal profession forms a part.

Here is Jennifer Rubin on one facet of the phenomenon under discussion:



The president's blather about 'bitter clingers' is another.

"We live in a low and dishonest age."


There's a certain sort of person who thrives on making and manipulating elaborate rules. The law profession and the government both seem to be dominated by them now. Principle is more or less irrelevant in their game. "The question is, who is to be master, that's all."


In which, unbelievably enough, I almost become political. I suppose once on a year on the 4th of July won't kill me.


"Keep Your Rosaries Off My Ovaries"

It's more than just nonsensical. It completely fails as a slogan. A slogan by its very nature has to be kind of catchy or snappy. It has to just jump out of your mouth and stick with you. This one is clunky and tedious.


Apparently it works for them, since they keep using it. I guess it's sufficient to trigger the emotions they're after.

I commented on your post over there. Excellent--people should go read it.

I read the Jennifer Rubin piece, Art. Pretty much on target, I think. I remember saying at some point around the 2008 campaign that reactions to Palin served as a good indicator of how people actually felt about ordinary Americans. I heard some reactions from affluent WASPs that were very much like what Rubin describes. They could be summed up as "ewww--ick!".

Thanks--for the excellent and for the comment.


Hobby Lobby case aside, if the Supreme Court are really doing their job of interpreting the law then why do we have so many 5-4 overwhelmingly partisan decisions year after year? They seem to split their decisions based on their political alignment with Kennedy as the swing vote. A notable recent exception to this was Chief Justice Roberts keeping the ACA alive a while back. I do not have any faith in the Supreme Court to make correct legal decisions.

Well, it could be that 4 of the judges are interpreting the law and 4 are trying to legislate from the bench. I don't know, really, but it could be the case.

I would think that by their very nature conservatives would be more likely to stick to their job description and liberals would be more likely to innovate. I'm not saying that this is the case, I'm just saying that it seems like it would be so.


"They seem to split their decisions based on their political alignment with Kennedy as the swing vote."

Or maybe they decide cases based on their judicial philosophy? I realize it's hard to separate that from a political preference, but we should at least give it a try. From further in that article by Charles Cooke that Mac linked to:

To acknowledge the Court’s legitimacy and to correctly understand its purpose is, naturally, not to endorse all of its decisions. Like most people, I consider it to have erred in a substantial number of cases — occasionally catastrophically. Nevertheless, I acknowledge that its “mistakes” are typically the result of judicial philosophies that are at odds with my own, and not of the Court’s members allowing their personal animosities towards litigants to inform their adjudications. Setting up our discussions on these terms is a prerequisite to understanding and to civic comity.

"... if the Supreme Court are really doing their job of interpreting the law then why do we have so many 5-4 overwhelmingly partisan decisions year after year?"

I don't think they are really doing their job. That's the problem. I'm inclined to think, as Janet suggests, that those numbers reflect a difference between the council-of-elders and interpret-the-law views. I don't think those decisions necessarily reflect partisanship in the Republican-vs-Democrat sense. I haven't read Ginsburg's dissent on Hobby Lobby, but the excerpts I've seen made it sound like she was in fact putting herself in the position of being an expert on women's health.

I thought it was a somewhat hopeful sign that the decision on Obama's attempt to claim "recess appointment" when there was no recess was 9-0. Even the "liberals" on the court still recognize limits, apparently.

I don't know enough about the Citizens United decision to have a defensible opinion about it, but it's one of those that are cited as partisan, and I don't think it necessarily was. Those on the left who didn't like the decision don't seem to have noticed that there were people on the left who supported it, e.g. the ACLU, who filed an amicus brief on behalf of what became the majority ruling.

"why do we have so many 5-4 overwhelmingly partisan decisions year after year"

why couldn't it just be that they have differing opinions on each case and that it just happens to result in a lot of 5-4 decions? (And does it really or is that just an impression from the media?)

or maybe it's that the cases brought to court are of this liberal v conservative type?

There really is a liberal-conservative split--it's more than "just happens." "Liberal" and "conservative" might not be the best terms, but for want of better, there's marked tendency for four to take the "liberal" side, four to take the "conservative," and Anthony Kennedy to veer back and forth.

Whether or not the court declares sometime in the next few years that marriage has no connection to gender is likely to be Kennedy's decision.


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