Has the Supreme Court Become Dishonest and Untrustworthy? One of Its Members Thinks So.
I'm an Instructor at Harvard, a consultant in risk perception and risk communication, author of How Risky Is it, Really? Why Our Fears Don't Always Match the Facts, and principal co-author of RISK, A Practical Guide for Deciding What's Really Safe and What's Really Dangerous in the World Around You. I run a program called Improving Media Coverage of Risk. I was the Director of Risk Communication at the Harvard Center for Risk Analysis, part of the Harvard School of Public Health, for 4 years, prior to which I was a TV reporter, specializing in environmental issues, for a local station in Boston for 22 years.
Happy Fourth of July weekend, and happy birthday to the United States of America, a wonderful country that, despite its problems, offers so much, including a legal system that insures that laws are followed and everything is fair. But more and more, trust in the most important part of that system, one of the basic foundations on which this great nation rests, is being eroded. The U.S. Supreme Court is supposed to be the final neutral arbiter of what is and what is not legal, but more and more the 5 person conservative majority on the court is undermining trust in the nation’s highest court, and ultimately the very fairness of how America works, by appearing to decide cases based on their personal ideology rather than an objective consideration of the law.
Just Thursday, and to little notice compared to the high profile ruling earlier in the week in the Hobby Lobby case, the court seemed to say that non-profit institutions have the right to impose their religious views on their employees, specifically in this case Christian opposition to contraception and abortion. (Read the ruling itself here.) There is one big and SCARY difference between this ruling and Hobby Lobby, and it raises serious questions about whether the conservative majority is honestly following the law, or dishonestly finding ways to impose their personal ideologies on how America works.
In Hobby Lobby the court said the owners of privately held companies don’t have to pay for insurance coverage for contraception for their workers…since that would violate the religious views and freedom of those owners. But the court respected the religious freedom of workers by providing a way they might still get coverage. The owners of the company just have to fill out some paperwork that says “Our religious views oppose contraception so we don’t want to contribute to insurance that pays for contraception for our workers”, and the company gets out of paying for contraceptive coverage, but the form then helps workers get coverage from the government. This exemption is expressly granted in the Affordable Care Act (i.e. Obama Care), as a way to recognize people’s different religious views.
But in Wheaton College v Sylvia Burwell (Wheaton is a Protestant-based school in Illinois. Burwell is Secretary of Health and Human Services), the religious views of the organization, at least when it comes to opposition to contraception, win outright. The court said the organization can opt out of paying for contraception coverage AND that it does NOT have to apply for the exemption that would help workers get coverage from the government. Wheaton feels it has to fight contraception however it can, so signing the form saying “We don’t want to pay” is not enough.
Wheaton's workers can still try to get government coverage, but it’s much harder and involves more bureaucracy, paperwork, and time. So while this ruling fully respects the religious views of the organization, it clearly does not equally respect the views and religious freedom of the female worker.
The ruling is not final. It merely granted an injunction, a freeze on what Wheaton College is required to do while the school argues these fuller issues in a case now making its way up the appeals court system. But the basis of the ruling is clear. At least when it comes to the moral issue of contraception, which Christians oppose because it feels like abortion (even though there is nothing yet to abort), the U.S. Supreme Court says the owners' anti-contraception First Amendment religious views win and the workers First Amendment freedom of religion rights lose.
This is about much more than the fight over contraception, or abortion, or whether you are a conservative or a liberal and like or dislike any of the Court’s specific decisions. This is about the honesty of the justices of the U.S. Supreme Court, and therefore trust in this important institution. The court used one line of thinking in one ruling, and then tossed it out in the next, allowing the majority to move toward more conservative values. Don’t take it from me that this is about the fundamental issue of honesty. Take it from three of the Court’s Justices themselves! In a remarkable and scathing dissent, the three women on the court, Justices Elena Kagan, Sonia Sotomayor, and Ruth Ginsburg said:
“Those who are bound by our decisions usually believe they can take us at our word. Not so today,” Sotomayor wrote. “After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates [the Religious Freedom Restoration Act] as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, retreats from that position.”
That’s a pretty semantic of saying that the majority in this case (the Wheaton ruling was unsigned, although conservative activist judge Antonin Scalia went out of his way to sign that he ‘concurs”.) is being dishonest. And that means that there is fair reason not to trust the Supreme Court, which in the end only operates with the trust of the public. And don’t take my word for that either. Justice Sotomayor wrote that the court’s action, “undermines confidence in this institution.”
This is stunning! A Supreme Court Justice is arguing, in essence, that the public has reason to MISTRUST the ultimate arbiters of what is legal in America. In the context of many decisions that neutral legal scholars have called conservative activist interpretations of the law – granting individual rights to gun ownership, upholding the ‘personhood’ of corporations, overturning parts of the Voters Rights Act - this recent decision is chilling evidence that the Supreme Court has become so ideological that the majority is not honest enough to be trusted as fair and impartial judges of how America is supposed to work.
This is NOT a critique of this ruling, nor of any specific decision. I am no legal scholar, and recognize that many people like the decisions the court has made while many don’t. But NONE of us should like that the supposedly fair final arbiter of the most contentious issues of the day is taking sides, and acting dishonestly in order to do so. And a majority of Americans feel that way. A survey by Rasmussen found that 61% of the public believes that the Justices rule from their own personal ideological agendas rather than on the facts.
The Supreme Court is losing the only thing it really has to maintain it’s power, the trust of the American public. No mater what side you’re on, if you are patriotic American, that’s scary. The court that was established by the Founding Fathers was expected to be fair and impartial, and honest. That the people no longer believe it is, and that some of its own members share that view, is truly frightening news for our country on this July Fourth holiday.