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.”