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Douglas Kmiec Headshot

Hobby Lobby Will Lose! But Can the Roberts Court Be Saved?

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John Roberts has consistently placed the integrity of the Supreme Court over his conservative ideology. Exhibit A is how it is that the Chief Justice found a way to sustain the constitutionality of the Affordable Care Act, even against right wing conservative claims, which Roberts himself shared, that Congress lacked constitutional authority to pass the measure under the commerce power.

Roberts is an admirer of John Marshall, the great Chief Justice. Marshall holds the record for serving the longest in the center chair. If life and health is favorable to him, John Roberts should eclipse John Marshall in time of service.

But Marshall is greatly admired for more than longevity. And Roberts very much wants to be.

John Marshall is revered for the clever way in which he affirmed the doctrine of judicial review while at the same time appearing to give credence to the claim of a fellow Federalist partisan William Marbury. But significantly to keep his antagonistic second cousin president (Jefferson) from impeaching him, Marshall did not actually award Marbury anything other than a direction to the District Court. The reasoning of Marshall was so deft and so clever that it was said that Edmund Randolph looked at it and said "all wrong all wrong but no man in the country knows why or where for." The result was unmistakable, however: Marshall to Marbury "nice try, wrong court, no commission."

From then until the present Marshall's cleverness has been a thing admired by new law students and old professors. And John Roberts maneuvers in favor of the affordable care act were not far behind. With the act assailed as being beyond congress' principal regulatory power -- the commerce power, no one was expecting Obamacare to survive Supreme Court review.

Yet, like the cavalry coming over the hill in their Toyota Prius in a Civil War reenactment, John Roberts Comes to the rescue of the man into office twice -- Well, actually three times but I'm not one to complain about misplaced clauses, for obvious reasons, unjustifiably.

It's fair to assume that John Roberts was more than a little bit wary of invalidating the key achievement of a popular president immediately before he stood for reelection. "Why have the Supreme Court of the United States become a political football?" he reasoned. And so, looking carefully into the provisions of the Constitution, Roberts arrived at the conclusion that Congress meant to pass the affordable care act premised upon its taxing and spending power -- even though President Obama really didn't want to call the penalty a tax, Which really wasn't a tax, at least for the anti-injunction act, even though it was a tax for the Constitution. Whatever you call it, it was more than adequate to sustain its constitutionality..

Along the way, John Roberts secured for his fellow conservatives, acknowledgement of the limitation on commerce power, acceptance of the spending power, but also with limitations that conservatives had long desired, and finally, in exchange, constitutionality of the health care law which would promptly allow the Supreme Court justices to rest easy upon vacation in the knowledge that they would not be in the center of political storm in the election to follow.

In other matters, too, John Roberts has avoided placing his court ahead of the consensus of the American people. For example, the court had at least two opportunities, theoretically, to proclaim with some degree of certainty the existence of same-sex marriage, but it found interesting ways to slide away in both cases. The President was enforcing, but not defending the Defense of Marriage Act. Huh? That seems DUMB-a -- umm -- DOMA.

Whatever that meant in light of the presidents duty to take care that the laws are faithfully executed, if permitted John Roberts and his court to effectively invalidate a key section of the federal law that was perceived as being antagonistic to same-sex couples -- and it was seen that way because that's the way it was intended. Validating a congressional enactment perceived as an attack on one's fellow citizens earned John Roberts some plaudits, even as one suspected that as a matter of faith or other beliefs, he had yet to join former Reagan colleagues, Ted Olson, and friend, David Boies -- whatever it is that they are up to.

Nonetheless, score some points among the same-sex marriage supporters for John Roberts, while at the same time throwing a point or two to the Federalist Society, as John managed to get out of Anthony Kennedy a curious federalism rationale anchored somewhere in the Constitution, thereby making the presidents same-sex constituency pleased, which also pleased the Federalist Republicans. Once again, Roberts managed to give a little something to both sides -- the baby was split, and wasn't even crying.

Some years ago, the court was confronted with a challenge to the Solomon amendment, which tried to get even with progressive universities who treated military recruiters in an unkind and unflattering way because of the military's policies to expel active gay members or those who disclosed their homosexuality. Solomon amendment, by all rights, was an attempt to control the speech of universities, and there's probably no redder cape that you could wave in front of charging left-leaning professors than an attempt to limit their speech -- as if anybody was listening .

Nevertheless, Roberts adroitly wrote an opinion that seemed to sustain the conservative condition on the grant of money to the university in favor of the military, while at the same time issuing an opinion that would not, in any significant way,- undermine First Amendment free-speech doctrine. As a bonus, the chief justice through in reliance upon the power of Congress to raise an army and a Navy, which no one in the case of thought of, to sustain the constitutionality of the Solomon act - Not even Solomon.

Edging more closely to the topic of religion, Roberts again, some years ago, was confronted with a challenge to President George W. Bush's use of discretionary funds for the executive branch, which was attempting to sponsor a conference in which faith-based organizations would be highlighted as possible grantees of social programs. Use of the discretionary funds was challenged and by all rights under the anomalous taxpayer standing exception that applies in religion clause cases, Roberts would've been placed in the position of challenging the very president who appointed him, contradicting him on a program near and dear to his heart. Roberts would have none of that, and instead, he crafted much to the delight of his conservative legal friends -- a tighter conception of taxpayer standing, which also bolstered his reputation as a man was not to be fooled with on the issue of the separation of powers. Go figure, the judiciary was to do judicial work.

And so, it is we come to the case dealing with a for-profit corporation who insists that it be treated like a church and have all of the benefits of a religious organization to be exempt from generally applicable laws; this is an extraordinary claim -- even though some in-house lawyer got the bishops all stirred up over nothing. Some of these bishops belong to the Republican caucus, anxious to embarrass more than educate, but even Francis refers to some of these folks as "sourpussum," which in Latin would be sourpussum. As in Dominus Vobiscum Sourpussum -- what a riot!

Putin us on? Yep, the notion that a for-profit corporation is the equivalent to a little church with the cash register substituting for a collection basket is quaint, but wrong. It's not that we don't want people to be nice to each other as they leave the parking lot, but if everybody can become a law unto himself by declaring himself to be a religious body or the equivalent, we will start to look like warring factions in Libya.

Roberts knows this, and he will want to avoid it. But how? It's not for me to disclose the cleverness of the Chief Justice before he plays his hand, but I'm going to make a prediction: Hobby lobby will lose. Why? Because no one can figure out how corporations actually manifest religious intent. And if that's not a sufficient explanation, because the federal statute that applies never contemplated that corporations would be within its scope. Maybe it dies, not in amount to Marbury v. Madison, but as they say, it's good for government work. At a minimum, it should be a simple matter for the great new Chief Justice John Roberts to proclaim a lack of standing on the part of Hobby lobby.

John Roberts may not be a community organizer. Like our president and the New York Times may not be doing retrospectives like they did for the president about how John Roberts is about as Catholic as the Pope -- because, well, in John Roberts' case, it is actually close to true. And while Barrack let me down personally, and without a John Roberts-type miracle it looks like he's going to come up short for everybody else too, it is hard not to love the guy for trying to help those in need -- who knew they had all gathered over at HHS?!