The problem with the umpire analogy is not chiefly that it’s not desirable from a democratic standpoint, it’s that it is impossible–claiming to just be a neutral strike-caller is a smokescreen for refusing to discuss the actual reasoning that underlies a judge’s opinion, allowing the judge to present disingenuous arguments that an ambiguous piece of text has an utterly clear meaning. Unlike making a determination about whether a ball has traveled in a certain plane–which may involve errors in judgment but in principle has a correct answer–decisions about what a text means doesn’t have an objectively correct answer. We don’t even agree on what meaning is; it could be what Congress intended, or it could be what the average person would understand, or it could be what the text would mean to the average person today, or some combination of these, or something else altogether. None of that is settled like the rules of baseball. Your suggestion that Alito was just following the text here and Ginsburg wasn’t is overly simplistic to the point of being wrong.
I think most SCOTUS rulings are actually narrow in scope, and since you’ve only presented like one that was previously narrow and been expanded, I think it’s true that in general narrow rulings in fact remain narrow. Most of them are long forgotten and barely ever cited in future decisions. So just because another narrow ruling has since been interpreted more expansively is no real reason to consider that it might happen here. Certainly not unless you can demonstrate that is the expected result of a narrow ruling.
The text of the ruling itself would also have to be ignored to rule that a company should be able to do all the nonsense things people were worried about when this case was first being litigated. Specifically things like exempt all companies from PPACA, allow companies with JW owners to not provide blood transfusions in their health plans and etc.
Might there be future cases where it’s interpreted in slightly different ways? Sure, but I’d wager any amount of money in the world it isn’t going to turn into some backdoor overturning of PPACA.
Which is why we don’t need nor should we have judicial review of laws at all. I can point to many countries where it is not practiced to the degree it is here, or historically wasn’t practiced it all, that are essentially as free as the United States. Judicial review is a bad thing, and I wish the original constitution had been written such that it was clearly forbidden.
It isn’t the expected result of every narrow ruling. It is the expected result of rulings that are “narrow” only because they say so, flying in the face of their own reasoning. The actual logic of the decision quite clearly applies beyond abortion and beyond closely-held corporations. The only thing cabining that logic are, to use Scalia’s phrasing, “bald, unreasoned disclaimers.”
That doesn’t mean that PPACA will somehow be overturned by this. That’s a straw man. It does mean that there is a very high chance that RFRA will now cover all for-profit corporations, and a very high chance that it will be the basis for exempting corporations from other laws of neutral applicability outside the abortion context.
I want this too. But I don’t believe this is the only duty of a Supreme Court justice. As all people do, they also have a duty to try to do the right thing, and to help make society better – even if the judges in the Dred Scott decision correctly interpreted the law, it was enormously evil for them to vote as they did.
We’d still have segregation without it, for just one example.
Then you must have some other mechanism in mind for how the constitutionality of a law could be established. Would you rather let Congress and the President simply ignore it? We have checks and balances on our tripartite government for very good reasons, which the writers, being not at all naïve about human nature, understood.
But wouldn’t it be worse off if the Justices were galvanized to change the law based on what they believed their duty to try to do the right thing was? Isn’t that something we’ve given to the legislature for the reason that they are accountable to the people. I would be scared of unelected judges being the duty to do the right thing arbiters.
Think of it this way, five justices (and tons of folks out there) believed their duty to do the right thing was to indicate that corporations have free speech rights.
Um… no.
In a broader sense, your criticism might have merit.
But in this individual case, you cannot claim that Alito wasn’t following the text, nor can you claim Ginsburg was.
The text in this case is pretty damn definitive. The RFRA applies to persons. The Dictionary Act says “person” includes corporation.
I’m not sure this is the best place to ask, but I didn’t know where else; is it specifically religious belief that triggers this standard? If I hold a strongly held, sincere secular belief, does that “count”?
Bricker: So every case in which the Court declines to apply the Dictionary Act even though the term isn’t expressly defined is an example of them wrongly deciding the case?
Or do you concede that the determination of whether to apply the Dictionary Act involves more than just asking whether the term is expressly defined?
They’re already doing this, on both sides.
This is true – and that’s why I want to elect another Democratic president to ensure no more “wrong-thinking” justices are appointed.
Theological beliefs only.
I’m having trouble parsing this sentence.
Do you have an example?
I sense that I’m opening a can of worms here, so feel free to just point me somewhere that could answer my question; why?
Ha! It’s why I am looking gleefully forward to the upcoming GOP takeover of the Senate this fall, and looking hopefully forward to the election of a GOP president in 2016.
Because that’s what the Religious Freedom Restoration Act says.
The second seems rather unlikely, considering demographic changes, but it’s still a long way off.
And I’m also somewhat gratified by Republican presidents’ very shaky record of appointing justices that actually hold up to conservatives’ hopes. Democratic presidents have been way better at this.
Even the first one would be against the polls and the trends.
They might be skewed, though.
Secular beliefs aren’t protected by the First Amendment. As I think about it, though, what exactly is a secular belief other than disagreement with a law? Are you suggesting, for example, that because I believe (strongly secularly believe) that Obamacare is a bad law, I should be able to disregard it? Surely not.
Bricker: You start with the text of the Dictionary Act itself, which says it shall be used “*n determining the meaning of any Act of Congress, unless the context indicates otherwise.” It does not define what “context” means, but no Justice has understood “context” to be limited to circumstances in which the statute expressly defined the term. Since the whole question here is whether the context of “religious belief” shapes the definition of “person,” it is circular to simply declare that “person” is not defined by the context of RFRA–that’s the whole question, and it has to be answered extra-textually. Alito’s answer is a pretty good one, IMHO. But I’m under no illusions that his answer is textual. Because it isn’t.
If you require examples of the Court declining to apply the Dictionary Act despite the lack of an express definition, I’m happy to provide. Pretty sure there was at least one from this term alone, and certain there are some from prior terms.