Friday, June 27, 2014

Who Will Decide Hobby Lobby / Conestoga Wood and Why It Matters

Like 99.999999999% of Americans, I am no expert regarding the US Supreme Court (SCOTUS).  But, as the saying goes, I know enough about SCOTUS to be dangerous.  It is a time honored tradition to try and guess what the SCOTUS will do and I will be partaking in that tradition today.  In fact, I am going to try to diving who will write the opinion in Sebelius v. Hobby Lobby aka Hobby Lobby / Conestoga Wood (Hobby Lobby), for who writes the opinion will determine if the decision is (based on your ideology) is good, bad or ugly.

So here we go, starting with the one I think will be the author of the opinion.

Justice Anthony Kennedy: When it comes down to it, Hobby Lobby is about social issues, specifically, the ability of employees to have access to contraceptives through their employer provided health plans.  Except with respect to the matters of abortions and voting rights, Justice Kennedy tends to be on the moderate/liberal side of social issues.  Take for instance his authorship of the opinions in Romer v. EvansLawrence v. Texas and United States v. Windsor.  Both decisions expanded equality under the law to gays and lesbians.  If Justice Kennedy writes the opinion, which I believe he will, look for the court to decide that corporations, even privately held family owned ones, do not have religious liberty, reversing the 10th Circuit Court of Appeals.  The decision would be 5 - 4.

Justice Antonin Scalia / Justice Clarence Thomas
: In my view, these two justices are almost interchangable.  Based on their history of supporting the concept of "corporate personhood", either Justice would easily vote to give all corporations religious liberty and the ability to use religion as an excuse to discriminate against its employees.  Either would affirm the 10th Circuit Court of Appeals.  The decision would be 5 - 4.

Chief Justice John Roberts: His potential authorship is what scares the hell out of me.  Seeing how much he loves to "split the baby" when it comes to decisions, his authorship could only spell ugliness.  Take for instance his authorship of the ACA decision where he upheld the ACA but struck down the provision requiring States to expand Medicaid, thus overturning the "power of the purse" legal concept.  This has left millions of Americans in States that refused to expand Medicaid without affordable medical care.  If the Chief Justice is the author, look for him to declare that non-publicly traded wholly family owned corporations have religious liberty while publicly traded and/or non-wholly family owned corporations do not.  It would be a 6 - 3 decision with Justices Scalia, Thomas and Alito in dissent.

Again, this is all speculation.  Who will be the author of the Hobby Lobby decision is anyone's guess, but it is very important as to who will write it.

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