Monday, June 30, 2014

With a Court Like This, Who Needs Congress?

The Tea Party and most social conservatives can sleep easily throughout the summer now. The two Supreme Court decisions rendered on Monday should delight the right and make the inaction across the street in the Capitol seems like a mere distraction. Like a fly buzzing around the collective government heads. The conservative revolution has been won, and all it took was five justices and very little money.

In the Hobby Lobby case, the court affirmed that not only are corporations people, they also have religious rights that can be exercised on health care issues. Yes, Justice Samuel Alito did say that he didn't expect the floodgates to open on religious issues, but just look at what the Court's decision on marriage equality did to even conservative states. Lower courts have run riot over anti-gay marriage laws to the tune of 17 states, many of which are in the most conservative areas of the country. Does Justice Alito really think that lower courts will demure when it comes to challenges on religious grounds? I don't.

But just as this Court has affirmed the highest aspirations of the conservative movement, and, I'm sure, cemented the idea that Madison, Adams, Jay and Hamilton would have agreed with them, they are just doing what the liberal courts did in the 1950s through 1970s. Remember that the court found a right to privacy in the 1968 Griswold case, and used that right, which appears nowhere in the Constitution, to decide Roe v. Wade. The Warren court did the same with Brown, basing it on previous, smaller cases that affirmed what the justices believed to be correct decisions.

Alito, clearly the more articulate conservative compared to Antonin Scalia, who just wants to rant, also wrote the majority opinion in Harris v. Quinn, the day's other liberal-bashing case. Here, he and the conservative majority said that some public employees do not have to pay union fees even if they don't want to actually join the union that represents their field. For example, in New Jersey, public school teachers who don't join the teacher's association still have to pay 85% of the association fees because the association represents and negotiates for these teachers. Alito created a new category of worker, a partial public employee who works for both the government and a private person who hired them, and said that this type of employee was exempt from representation fees.

This decision is not major in the sense that it covered a great deal of people, but it does open up the gates to further challenges to unions and laws that require people to pay a representation fee. The next case could give the conservatives an opening to expand the definition to part-timers or support staff or, to be honest, any other public worker. Alito doesn't like unions. It's not just the law; it's personal.

While President Obama and the right wing Republicans duke it out over language and politics, the Supreme Court is moving full steam ahead to craft a country that looks more like 1814 than 2014. The biggest problem, though, is that the former generation had Chielf Justice John Marshall to guide it. We get Alito, Roberts, Scalia and Thomas.

We lose.

You want more? That's easy. Simply go to or Twitter @rigrundfest


  1. What did Thomas have to say?

  2. Nothing, but he agrees with the right, as always.

  3. #LessThanUseless

  4. What if all the enlightened people just refuse to work for Hobby Lobby, et al.? And is anyone going to quit a job they already have because they have to pay for certain things out-of-pocket?

    1. I suppose employees will need to make that decision. Remember that HL didn't oppose all birth control, just those that they believed mimicked abortion.