CREDIT: AP Photo/Charles Dharapak
Judge Richard George Kopf, a George H.W. Bush appointee to the federal bench who maintains his own personal blog, has some harsh words for the Supreme Court in the wake of their birth control decision in the closely watched Hobby Lobby case: “the Court is now causing more harm (division) to our democracy than good by deciding hot button cases that the Court has the power to avoid. As the kids says, it is time for the Court to stfu.”
Just in case there is any ambiguity regarding what Judge Kopf means by “stfu,” he links to an Urban Dictionary page which defines that grouping of letters as an “[a]cronym used for the phrase ‘shut the fuck up’ for efficiency reasons.”
Earlier in the same post, Kopf explains that he believes that the Court is diminishing its own prestige by deciding cases such as Hobby Lobby:
In the Hobby Lobby cases, five male Justices of the Supreme Court, who are all members of the Catholic faith and who each were appointed by a President who hailed from the Republican party, decided that a huge corporation, with thousands of employees and gargantuan revenues, was a “person” entitled to assert a religious objection to the Affordable Care Act’s contraception mandate because that corporation was “closely held” by family members. To the average person, the result looks stupid and smells worse.
To most people, the decision looks stupid ’cause corporations are not persons, all the legal mumbo jumbo notwithstanding. The decision looks misogynist because the majority were all men. It looks partisan because all were appointed by a Republican. The decision looks religiously motivated because each member of the majority belongs to the Catholic church, and that religious organization is opposed to contraception. While “looks” don’t matter to the logic of the law (and I am not saying the Justices are actually motivated by such things), all of us know from experience that appearances matter to the public’s acceptance of the law.
Despite his strong words, it is unlikely that the alternative course Judge Kopf thinks the Court should have taken would have led to a different practical result than the victory Hobby Lobby received last Monday. “What would have happened if the Supreme Court simply decided not to take the Hobby Lobby cases? . . . . Had the Court sat on the sidelines, I don’t think any significant harm would have occurred. The most likely result is that one or more of the political branches of government would have worked something out.”
In reality, if the Court had sat on the sidelines, that would have meant that in jurisdictions where a federal appeals court accepted Hobby Lobby‘s legal theory, plaintiffs bringing similar claims would have won. While, in jurisdictions where that legal theory was rejected, plaintiffs would have lost. In practice, however, this would have simply encouraged plaintiffs to shop around for a jurisdiction where they had favorable precedents and avoid filing lawsuits in areas where they would lose. In other words, the practical effect, at least in most cases, would be that companies claiming religious objections to birth control would win.