Roberts court turns further right

Thursday, July 17, 2014 | 2 a.m.

Supreme Court Justice Sonia Sotomayor’s polemic against the court’s conservative majority decision in the Wheaton College case is as much a cry of frustration as it is a dissent.

She criticizes the justices in a way the public seldom sees, saying in a blistering 16-page dissent, joined by Justices Ruth Bader Ginsburg and Elena Kagan: “Those who are bound by our decisions usually believe they can take us at our word. Not so today.”

The Wheaton ruling, issued July 3, said the Christian liberal arts college in Illinois doesn’t have to use a federal form to meet the requirements for a religious exemption from providing contraceptive coverage.

The Wheaton ruling was not formally a court opinion, coming as it did three days after the Burwell v. Hobby Lobby decision closed the court’s 2013-2014 session. It was rather the granting of an injunction against the government’s attempt to enforce the terms of the Affordable Care Act’s contraception mandate against the college. But as Sotomayor suggested, the Wheaton decision runs counter to what the court had just ruled in Hobby Lobby.

The injunction does not have the force of settled law, as an opinion does, but it nonetheless deepened the divide in the court along gender (except for Justice Stephen Breyer, who usually votes with the liberal female justices), political and ideological lines.

The three female justices and Breyer are Democratic appointees. The five generally conservative justices, Republican appointees, are Chief Justice John G. Roberts Jr., Antonin Scalia, Clarence Thomas, Anthony Kennedy and Samuel A. Alito Jr. In rare cases, Kennedy joins the liberals in 5-4 decisions.

The contraceptive decisions come as polls show the public losing regard for the court. Last summer, a Pew Research Center poll showed historically low confidence levels. The most recent poll, in April, shows a slight rebound, but legal scholars say public regard for the court has been sliding for years, much of that due to the high number of overtly political 5-4 decisions.

It wasn’t always this way. From 1801 to 1940, fewer than 2 percent of rulings had 5-4 results. Since then, more than 16 percent have been narrow approvals and more than a fifth were decided by 5-4 votes in both the Roberts court and that of his predecessor as chief, William Rehnquist.

Shortly before John Paul Stevens resigned from the court in 2010, he was profiled in the New Yorker magazine by Jeffrey Toobin, author and veteran Supreme Court observer. Toobin wrote that when Stevens, the last of a long line of moderate Republicans to serve on the court, retired, “the Supreme Court will be just another place where Democrats and Republicans fight.”

How prophetic.

The form “is the least restrictive means of furthering the government’s compelling interests in public health and women’s well-being,” Alito wrote.

But Wheaton argued that would make the school complicit in providing contraceptives that it objects to for religious reasons. And on Thursday, July 3, the court’s majority said that was OK, thus reversing what it had ruled Monday, June 30.

That “undermines confidence in this institution,” Sotomayor wrote in her dissent.

Those are mighty strong words. But given the history of court decisions under Roberts, they are warranted.

Legal analysts say the court’s opinions since Roberts became chief justice in 2005 have moved the law steadily to the right. For instance, in the Citizens United v. Federal Election Commission decision in 2010, the court extended the rights of free speech to corporations and unions, striking down limits on independent campaign spending by corporations and unions. While praising the virtues of transparency, the decision has allowed for complete secrecy for funding sources.

Other issues that the court has used to move the nation in a more conservative direction include payment of union fees, campaign finance and public prayer. On union fees, the court ruled in another 5-4 decision last month that public-sector unions in Illinois cannot collect fees from home health care workers who don’t want to be part of a union.

The campaign finance case and the public prayer case also had the 5-4 split. Regarding campaign finance, the court in April struck down a decades-old lid on the amount an individual can contribute to federal candidates in a two-year election cycle. In May, the court cleared the way for local officials to open public meetings with explicitly Christian prayers.

In sum, the court in the term that just ended ruled against women, minorities and labor unions and in favor of corporations, Christian believers and wealthy campaign donors.

This could explain why Sotomayor’s dissent in the Wheaton ruling reads like an outsize response to what on the surface looks like a deceptively simple accommodation.

If they don’t receive a Form 700, the school’s health insurance company won’t be notified that the school is not going to pay for contraceptive coverage. The court said the government could cover the cost of contraception, but without the form, the government won’t know who the insurer is or be able to administer the coverage.

As Sotomayor put it: “Form 700 does not just serve notice to the government. It also gives notice to the insurance provider because a religious nonprofit using Form 700 is required to copy the provider.”

Without that notice, she wrote, “how can it (the government) ever identify the organizations eligible for the accommodation and perform the administrative tasks necessary to make the accommodation work?”

Now there’s a good question.

It’s also the crux of the liberal justices’ frustration with the opinion. It may be construed as narrowly applying to Wheaton College — and HHS presumably knows what insurer the college has — but it also could have far-reaching consequences. Surely other organizations will begin writing to the secretary seeking relief from the mandate without identifying their insurers.

The court blithely assures the public in the Wheaton ruling that “nothing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA-approved contraceptives.”

But some see it as a work-around to let those who don’t want to pay off the hook.

Said Walter Dellinger, who served as acting solicitor general under President Bill Clinton: “After today, it is clear that their (women’s) access to contraception is by no means guaranteed given the administrative complexities the court has now imposed.”

Rankly partisan decisions that impinge on the rights of women, minorities and the poor for the benefit of special interests, for certain religious believers and the wealthy is not worthy of the highest court in the land.