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Hobby Lobby: Not nearly as comical as it sounds

#NotoriousRBG #RuthBaderGinsburg #Feminist
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It’s that time of year again, when those shameful people who don’t normally pay attention to the wondrous greatness of Justice Ruth Bader Ginsburg are forced to take notice. Concluding the October 2013 Supreme Court term, the Court released its final decisions on Monday. With the growing jurisprudential madness of the Court’s conservatives, Real Bad Gangsta had yet another chance with the case Burwell v. Hobby Lobbyto author a thundering dissent. As satisfying as her dissents can be, I yearn for the day when RBG can once again write a thundering majority opinion.
Samuel Alito, who has shown himself to be a Grade A asshole on numerous occasions, authored the majority opinion in Hobby Lobby. It probably wasn’t his choice to write the majority, but he has sure done a good job at making it seem like he thinks women are stupid and inferior to men. Like when he was a member of Concerned Alumni of Princeton, which formed in protest to Princeton’s 1969 decision to admit women (1969!). Or when in 1991, he upheld the entirety of Pennsylvania’s restrictive abortion law, including the spousal notification requirement, as a federal appellate court judge in Planned Parenthood v. Casey.Or his majority opinion in Ledbetter v. Goodyear. Or his “display of rudeness” last June while our Eternal Goddess, Ruth Bader Ginsburg, was reading a dissent from the bench. Or his concurring opinion last week in McCullen v. Coakley, in which he presents the “entirely realistic situation” where a woman who wants to enter an abortion clinic is essentially too stupid and ill-informed to make a decision on her own and ought to receive “sidewalk counseling” from random zealots on the street. And now add the Hobby Lobby decision to this list.
“Step off, Alito.”I don’t really need to rehash what the decision and the dissent had to say; it’s been written about elsewhere. The basic point is that Alito is wrong and RBG is right. Just read the opinions, and you’ll figure it out. Here are random thoughts and observations:
When Alito is talking about the specific forms of contraception that Hobby Lobby and the others object to, he states that those forms of contraception can potentially destroy an “already fertilized egg” and operate “after the fertilization of an egg,” which Hobby Lobby’s owners see as destruction of human life. Just as the arguments about abortion typically focus only on the evil, barbarous women who want to get abortions, Alito only refers to these vile, sinful female employees who wantonly rid themselves of their “already fertilized” eggs. How did those women get fertilized eggs, anyway? If they didn’t want fertilized eggs, they shouldn’t have fertilized their eggs to begin with! Too bad no wise, virtuous men were around as these women were carelessly fertilizing their eggs, because no doubt a man would have prevented such a thoughtless waste of human life. Now that I think about it, I’ve never heard of any man needing an intrauterine device!
RBG spends several pages of her dissent talking about legislative history, both of the Affordable Care Act and RFRA. I’d like to think that she did that really oas a dig at Scalia, who despises the use of legislative history in interpreting statutes (except, of course, on the occasions when it may support his view).
RBG is willing to acknowledge that she’s been wrong in the past, but only unconsciously. “The Court points out that I joined the majority opinion in City of Boerne and did not then question the statement that ‘least restrictive means . . . was not used [pre-Smith].’ Concerning that observation, I remind my colleagues of Justice Jackson’s sage comment: ‘I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.’”
This part was fun: “The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.”
RBG begins her dissent by referring to the majority opinion as “a decision of startling breadth.” Reading the majority, as wrong as it may be, it doesn’t immediately seem that it is “of startling breadth.” It seems that the majority makes a point of ruling narrowly, at least considering how far it could have gone. But as I’ve pointed out before, RBG knows all. And she would know, certainly better than anyone outside the Court, what the other justices think about these issues. Maybe she knows that the conservatives, or at least the four most conservative, want to go further. Or maybe she’s used to ol’ snake-in-the-grass Roberts’ trick of ruling narrowly on one case today so he can use it to blow open a hole in an area of the law tomorrow. Regardless, Justice Ginsburg is sounding the alarm and we need to listen.
“I’m always watching you, John. Always.”Yet some people don’t seem to truly appreciate what Justice Ginsburg has done for us by choosing to stay on the Court. As I’ve brought up time and again, there are people—supposedly liberal people, too!—who think it’s time for RBG to leave. For example, some guy at Salon, no doubt an asshole, wrote just yesterday that he thinks it’s time to “let Obama appoint [a] successor” to Justice Ginsburg. He blathers on:Yet while the growing cult of the Notorious RBG is a well-deserved testament to her brilliance as a jurist and talent as a writer, it ignores an uncomfortable reality about this current moment in the politics of the Supreme Court. Namely, the celebrations of her brilliance fail to recognize that the best thing Ruth Bader Ginsburg could do for the liberal movement right now is, arguably, to call an end to a sterling and trailblazing legal career and step down from the court.
OH PLEASE. Yes, people who want RBG to stay on the Court, including RBG herself, clearly have no understanding of politics today and “fail to recognize” that we should just cart her off to the nearest nursing home to spend her remaining days (and *stage whisper* who knows how many of those there are) to mutter to herself about how the current majority, filled with young spring chickens like Antonin Scalia and Anthony Kennedy, are stripping away what remaining protections women, people of color, and other historically (though maybe not so historically, if the conservatives have their way) oppressed groups still have.
It’s not RBG’s fault that the current state of politics is insane. I wish it wasn’t. I also wish Sandra Day O’Connor hadn’t offered her resignation in 2005, leading to her replacement by Alito the following year. For that matter, I wish Earl Warren hadn’t retired in 1968 to try to let LBJ appoint his successor, only to be replaced by Nixon’s choice, Warren Burger.
Besides, RBG is immortal. I’m beginning to think the pancreatic cancer thing was a prank she played just to see who her true supporters are. Apparently not a whole lot of “liberals” who are constantly bringing up her two-time-cancer-survivor status in arguing she should retire.
 In other news, I learned from SCOTUSblog today that the Court granted cert yesterday on a case involving the Pregnancy Discrimination Act, Young v. UPS. I have a feeling that’s not going to turn out well. I’ll probably write more on it once Ginsburg’s dissent in the case is released. Also, depending on when you read this, check out the GinsBlog’s new sister site, Adventures in Doctrinal Wonderland. As of this writing, there’s currently nothing there. But it’s going to consist of Supreme Court fanfiction, and probably other stuff. Yay! Hopefully stuff should be there soon!

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