In its recent decision in the Hobby Lobby case, the narrow conservative majority of the Supreme Court ruled that the craft store chain is exempt from the employer-mandate of the Affordable Care Act to include coverage for contraceptive services in the health insurance plans provided to employees. According to the majority, such a mandate violates the company owners’ religious freedom. Though characterized by some as being of limited impact, it’s hard not to see the ruling as far-reaching and extremely destructive.
According to Justice Ruth Bader Ginsburg, who wrote a scathing dissent to the Court’s ruling, the implications for individual Americans as they relate to corporations is extremely worrisome. Ginsburg said the decision is one “of startling breadth” and that it will allow corporations to opt out of almost any law that they find “incompatible with their sincerely held religious beliefs.”
As Ginsburg noted, by the logic of the ruling, an employer might now be able to escape paying the minimum wage or according women equal pay for equal work if doing so offends their “sincerely held religious belief.”
Of course, one of the most frustrating things about reactionary Supreme Court decisions is that they don’t lend themselves to easy reversal. Constitutional amendments are virtually impossible to enact and it often takes decades at best for the Court to get around to overturning its most disastrous precedents. Acts of Congress can sometimes provide relief, but as a general matter, there simply aren’t many quick fixes.
So, what to do?
The most important answer to that question is for progressives to acknowledge the power of the courts and commit themselves to changing their composition going forward. Ultimately, the Hobby Lobby decision and other recent rulings like it — e.g. Citizens United, McCutcheon v. FEC and Town of Greece v. Galloway — are the byproducts of the judges who make up the judiciary.
For decades, progressives have devoted precious little political energy and capital to the composition of the courts — opting rather to defer to bar associations and other “neutral” organizations.
Meanwhile, conservatives have made influencing judicial nominations a top priority. Whenever a person is nominated to the federal bench anywhere in the country, one can count on the fact that business lobbies, the religious right and gun advocates will weigh in regularly and loudly. America’s courts — both federal and state — are significantly more ideological and conservative in 2014 than they would be had the right not invested decades of effort and millions of dollars to make them that way.
A classic example of how this type of hardball politics often plays out is on display right now in North Carolina. Last June, Sen. Richard Burr’s silence led a one-man filibuster of President Barack Obama’s nomination of veteran federal prosecutor Jennifer May-Parker to serve as the first African-American federal judge in the history of the Eastern District of North Carolina. Indeed, not only is Burr refusing to give his approval so that May-Parker’s nomination can be considered by the Senate Judiciary Committee (something that Senate practice currently requires from both home state senators), he’s refusing to say why. And to make matters even more maddening, Burr previously recommended May-Parker for the job at the outset of the Obama administration!
Clearly, Burr’s actions are the result of right-wing political pressure — both on him and Republican leaders — to block Obama nominations at every possible turn. As has been repeatedly documented, the pattern has been replicated in state after state.
That said, it’s also worth noting that recent and concerted efforts by the U.S. civil rights community and other progressives to push for solid and fair-minded judges have started to have an impact. This has been especially true during the first year-plus of the President’s second term.
North Carolina civil rights groups recently renewed their advocacy efforts by delivering a letter to Senate Judiciary Committee chairman Patrick Leahy asking that he dispense with the requirement that Burr give his approval — at least in part on the grounds that the senator has forfeited any entitlement to such a courtesy with his utter refusal to explain his blockade.
Regardless, however, of the outcome in this single case, it’s clear that a course is being charted for the kind of advocacy that needs to happen on a consistent basis going forward. If progressives want to push back against the conservative efforts to control the judiciary and, ultimately, secure the reversal of rulings like Burwell v. Hobby Lobby, the path is clear and the time for action is now. : :
— Rob Schofield is the Director of Research and Policy Development at N.C. Policy Watch.