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Tuesday, March 25, 2014

The Argument Over Whore Pills And The Holy Corporations Who Hate Them

SCOTUSblog has a recap from today's arguments over the ACA contraception non-mandate.  One hopes Kennedy isn't so easily snowed as he appeared.

ntodd

March 25, 2014 | Permalink

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Swing Justice Kennedy will be a major figure in the history of our time, a floating widget patched in at key points of decision to assure that the resolution will be generally unsatisfactory and unintelligible.

Posted by: John Emerson | Mar 25, 2014 3:22:59 PM

I'm not so easily persuaded by the questions as to imagine the Justices have reached their decisions. I think they were trying to challenge the arguments of counsel, and having read other accounts I wonder if Scalia, for example, was silent until the government's lawyer spoke.

Generally, though, oral argument is a chance to put counsel to the test, not to trot out your pet theory that will be used against the other justices in closed-door discussions. From what I read at Scotusblog, I didn't get the impression any of the four conservatives have a coherent theory that supports the claims of Hobby Lobby, et al. They just wanted the government to stand and deliver (since they are the party "defending" the claims brought by Hobby Lobby to the Court).

I still won't be surprised if the Court decides the case on the question of standing by a corporation under RFRA. Unless that's settled law (my knowledge of RFRA jurisprudence is nil).

Posted by: Rmj | Mar 25, 2014 3:46:38 PM

Corporations are people too, and they have feelings. And strongly-held beliefs.

Posted by: John Emerson | Mar 25, 2014 3:48:12 PM

We certainly can't divine how they'll go based on questions, particularly since we aren't privy to their private debates. But Kennedy has weird issues about abortion, and if he is at all swayed by the abortifacient canard, he may wander aimlessly into Scalia's steel trap. As I said, one hopes the exchanges reflect the testing of boundaries, rather than his being convinced by waving hands and bullshit.

Posted by: NTodd | Mar 25, 2014 5:50:06 PM

I'm not persuaded Scalia has a steel trap in this one. Political speech is not the same thing as religious belief, and the law has always recognized that (so Citizens U is not binding on this case). The Court does not want to get into the issue of deciding which religious belief is valid,and which isn't (the basis of Scalia's decision that led to RFRA, and of Kagan's questions today).

There are too many dangers in granting the position of Hobby Lobby in this case, and I think even Scalia knows that. I know everybody expects this to be 5-4, but I still think it will be closer to 7-2, or higher.

Posted by: Rmj | Mar 25, 2014 9:35:26 PM

Indeed, if he's so damned smart and dedicated to reason and even precedent, he'd note:

“[i]t is not within the judicial function and judicial competence . . . to determine whether” a plaintiff “has the proper interpretation of [his] faith.”

United States v. Lee (1982)

Posted by: NTodd | Mar 25, 2014 10:34:08 PM

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