When the Supreme Court's opening gavel fell Monday, Justice Antonin Scalia was not to be seen. Not to worry, said the Court’s Public Information Office, Scalia was traveling and doing fine.
The magic was performed in both cases by the junior conservative, Justice Samuel Alito. A few years ago, Emily Bazelon noted that Alito displays “selective empathy”—deep feeling for the pain of some groups and utter indifference to that of others. In this case, Alito was tender toward anti-union workers and anti-contraception employers, flinty toward union members, female employees, and women’s so-called health needs.
Courts, of course, must often balance the rights of one group—employees, say—against those of another—employers, perhaps. Employees don’t always win, nor should they.
But the majority Monday didn’t balance rights; it simply pretended that one side had them and the other didn’t.
Start with Harris. In 2003, 20,000 in-home health-care workers in Illinois’s Rehabilitation Program voted to designate the Service Employees International Union as their “bargaining representative” to negotiate their pay and benefits with the state. These workers are part of a joint state and federal program (Medicaid picks up much of the tab) to provide care to elderly and disabled clients in their homes. The arrangement preserves their dignity and autonomy and is much cheaper than nursing home care.
The health-care workers are selected by the recipients themselves. The state then approves them, provides training, and pays their salaries. Only a recipient can fire a worker, but the state can cut off the worker’s salary if it concludes the care is abusive or substandard.
After the union election, no worker was required to join a union. But as authorized by a long line of Supreme Court precedent (named after a case called Abood), Illinois state law allowed the union a “fair share” fee from each non-member to help pay the union’s costs of bargaining with the state. A number of Rehabilitation Program workers objected to the fees, and, represented by lawyers from the National Right to Work Legal Defense Foundation, they challenged the fees as a violation of their First Amendment rights.
The plaintiffs asked the Court to overturn all precedents allowing public-employee unions to charge “fair share” fees—in other words, to cripple all these unions financially. The five conservatives did not go that far, but they did conclude that the home-health-care workers were not “full-fledged” state workers and thus Abood did not apply, clearing the way for them to assessment the First Amendment claims. They found, unsurprisingly, that the fees violated the employees' First Amendment rights.
The majority opinion discussed the unionized workers as if they were lumps of clay. First, Alito wrote that SEIU “was designated” as the workers’ exclusive representative. (Remember, the workers voted for it.) Anyway, what bargaining could there be? The workers are paid at “the hourly rate set by law,” so the workers have nothing to say there. Finally, he cited a provision of federal law that denies union rights to “any individual employed ... in the domestic service of any family or person at his home.”
To the majority, then, the home-care workers aren’t professionals at all. They are glorified maids. Case closed.
In Hobby Lobby, Alito felt the pain of the Green and Hahn families, owners respectively of Hobby Lobby Stores and Mardell Christian bookstores, and of Conestoga Wood Specialties. The corporations are large (Hobby Lobby has 13,000 employees at 500 stores) but are closely held by the families.
Both families are Christians. They believe that some contraceptive methods cause the destruction of a fertilized egg, which to them is a human life. Under the Affordable Care Act, however, their insurance plans must offer employees access to all medically approved methods of contraception. Under the ACA, the company pays for the insurance; the employees decide whether to use contraception and, if so, which kind. But that setup, the families argued, would “facilitate” use of the objectionable methods. They sued under the Religious Freedom Restoration Act for this “burden” on their religious beliefs.
Defending the requirement, the government argued that RFRA should not apply to for-profit corporations at all. That very idea, to the majority, was too monstrous to be entertained. Millions of small-business owners use the corporate form: The government "would put these merchants to a difficult choice: either give up the right to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations.” The Greens could simply choose not to offer their employees health-insurance at all; it could instead pay the government a tax of $2,000 per employee (which is not much more—if more at all—than the cost of health insurance), permitting the employees to buy insurance on ACA exchanges. But that would grieve the owners’ hearts too: “the Hahns and the Greens and their companies have religious reasons for providing health-insurance coverage for their employees.” The government also argued that the contraceptive choices of the employees can’t be considered a burden on the beliefs of the employers—they represent individual choices by the women involved. This would “in effect tell the plaintiffs that their beliefs are flawed.”
Now, of course, thousands of employees—all women—have an interest in making contraceptive choices without interference by the Greens and the Hahns. This is not the pain of being told their “beliefs are flawed”; these are interests based in the need for equal pay for women, freedom of individual conscience, and their physical health and that of their families. The majority made no mention at all of those interests. The opinion rather noted that the government defended the program using “very broad terms, such as promoting ‘public health’ and ‘gender equality.’” It noted the argument that the program ensures “that all women have access to all FDA-approved contraceptives without cost” and grudgingly assumed that this interest was compelling.
But, the majority said, if the government is so all-fired hot to give female employees these choices, why can’t the government just pay for the contraceptives? Why, in other words, shouldn’t female employees pay for their contraception twice, first with their labor and second with tax dollars, in order to spare the Greens and the Hahns even a moment’s discomfort? Or—and here’s the meat of the opinion—why doesn’t the government just offer to all “closely held” corporations the same accommodation it has already offered to religious non-profits? Under that accommodation, these organizations can certify that they oppose providing contraceptive services, and the organizations’ insurance companies must then provide them to the worker without additional cost.
(The “let the taxpayers pay” suggestion was too much for Justice Anthony Kennedy to stomach; he concurred separately to say, first, that despite Alito’s stilted language, the majority really does “assume that [the mandate] furthers a legitimate and compelling interest in the health of female employees,” and, second, that the idea of compelling the government to fund contraception seemed a bit excessive to him.)
In dissent, Justice Ruth Bader Ginsburg labored mightily to give “gender equality” a human face, pointing out the economic and health burdens forced on women when health-insurance restricts or omits contraception: “the mandated contraception coverage enables women to avoid the health problems unintended pregnancies may visit on them and their children” and “helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening,” she wrote. It also “secures benefits wholly unrelated to pregnancy, preventing certain cancers, menstrual disorder, and pelvic pain.”
The suggestion of the “accommodation” sounds statesmanlike, but at oral argument Hobby Lobby’s lawyer had refused to stipulate that his clients would accept it. Indeed, the religious nonprofits themselves are resisting the “accommodation,” since the certification itself would “facilitate” employees’ access to the forbidden contraception. And the Court explicitly said Monday that it wasn’t committing itself to approve the accommodation either. In fact, within hours after the decision, the Eleventh Circuit had granted a religious non-profit’s request for an injunction against the “accommodation,” arguing that Hobby Lobby meant that it could not survive RFRA either.
So the best offer from the majority was, either let the government pay for whatever the families don’t want to, or offer the families an accommodation that they haven’t asked for, won’t commit to accepting, other religious groups have already declined, and the Court itself may not approve.
And here’s a second common feature of both of Monday’s opinion: both, in essence, beg the conservative advocacy groups to bring new challenges to public-employee unions and the contraceptive mandate. Harris does not overturn Abood, but the majority directs a torrent of abuse toward the case and suggests it’s only leaving it alone because it doesn’t have to do otherwise to decide this particular case. The Court hinted that challenges to the “mandate” would be limited to “closely held” corporations, but it explicitly refused to rule out challenges by corporate giants like Exxon.
Bring us a case and we will wipe out the “agency fee” altogether, their opinion hints. And bring us Obamacare cases, lots of Obamacare cases.
In that sense, 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.