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Hullabaloo


Sunday, March 19, 2017

 

SCOTUS: No laughing matter

by Tom Sullivan


Judge Neil Gorsuch of the United States Court of Appeals for the Tenth Circuit.

I once watched a noted physicist use the theory of relativity to refute religious truth claims to a gaggle of students. Truth, not just fact, was relative, a matter of opinion dependent on the viewer's frame of reference. It seemed a curious claim at the time. It now seems we may get to examine whether the applicability of law is a matter of a believer's frame of reference when Senate confirmation hearings begin tomorrow for elevating Judge Neil Gorsuch to the U.S. Supreme Court.

It seems Gorsuch sets great stock by religious opinions and believes that courts should defer to a believer's conscience. Dahlia Lithwick explains at Slate:
Indeed, Gorsuch opened his concurrence in that 2013 Hobby Lobby case with the caution that:
... all of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability.
The real wrongdoers, then, are the judges who force people of faith to sin. The sinner’s conscience swallows all inquiry.
The way the physicist asserted relativity renders truth inoperative. Lithwick continues:
It’s not just the great deference Gorsuch shows religious adherents that is worrisome. He also believes that the views of religious adherents are beyond factual debate. Again in the Hobby Lobby case, he wrote that companies must pay for “drugs or devices that can have the effect of destroying a fertilized human egg.” That claim is simply false, even with regard to Plan B. It is a religious conclusion, not a medical or legal one. Whether that view is his or he simply declines to probe whether the religious conclusion is accurate, the effect is the same: He has written into a legal opinion a religious “fact” not supported by medical science.

This kind of thinking matters especially when the tremendous respect for religious dissenters is not balanced against the harms incurred by nonadherents. Gorsuch sometimes minimizes or outright rejects the third-party harms of religious accommodations. As Yuvraj Joshi points out at NBC, “while the Supreme Court’s decision in Hobby Lobby considered the impact of the case on women, Judge Gorsuch’s opinion does not even acknowledge the harmful effects of denying access to reproductive health care on female employees and dependents. Instead, his sole concern is for religious objectors who feel complicit in the allegedly sinful conduct of others.”
Lithwick observes that this conception of religious liberty allows believers (of a certain sort, I might add) to trump objective fact and others' concerns. It will be interesting to see if Gorsuch faces questions about this from the Judiciary Committee. Jeff Greenfield suggests otherwise, citing an unnamed scholar as predicting "a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis."

Jay Michaelson wonders whether Gorsuch's leanings regarding corporate personhood will be on view in the Senate. He may not have ruled on cases like Citizens United, but in close cases, Michaelson writes, Gorsuch sides with businesses over indviduals:
The most telling of Judge Gorsuch’s opinions are his dissents, in which he frequently departed from his mostly conservative Tenth Circuit colleagues to stake out even stronger pro-business positions. A report by the left-leaning People for the American Way catalogued 35 such dissents, including four out of five workers’ rights cases where the court found for the worker, but Gorsuch dissented to support the company.
Michaelson concludes:
For too long, progressives have given conservatives a pass on the concept of “originalism.” It was never the Founders’ original intent to allow corporations to become as powerful as they are today. Quite the contrary; their original intentions were to limit them or even ban them entirely. It is absurd to suggest that Gorsuch’s pro-corporate rulings, or the Supreme Court’s decisions in Citizens United and Hobby Lobby, in any way reflect the original intentions of the founders.
“I’m really going to be going to certain areas that serve what I consider his pro-corporate bias, which I think has been the bias of the court, the Roberts court,” Minnesota Democrat Al Franken tells the Washington Post. For the former "Saturday Night Live" comedian, tomorrow's hearings are no laughing matter.