Hobby Lobby: Predictions

So I’m coming out of blogging retirement for one big score. I spent the better part of this fall obsessing over the legal issues at stake in the “Contraception Mandate” case just about to be decided at the Supreme Court – better known to the world as Hobby Lobby v. Sebelius. With the decision coming any day now, I thought it would be fun (or embarrassing, depending on how it goes) to try and predict how the Court is going to rule. If I have time, I might try and make some other posts about what to expect in terms of popular reaction, and why many of those reactions are likely wrong or blown out of proportion.

As a preliminary, there are essentially four big questions at stake in the case, unless the Court decides to do something odd and dispose of it on some unexpected axis. Those questions are:

  1. Can a for-profit corporation “exercise religion” within the meaning of the Religious Freedom Restoration Act?
  2. Is the contraception mandate a “substantial burden” on a “person’s” religion exercise?
  3. Is the contraception mandate in service of a “compelling government interest”?
  4. Is the contraception mandate implemented using the “least restrictive means”?

Of course, the framing of the questions at stake is itself a loaded question. This article, for instance, essentially poses the question “Do corporations have a soul?” in place of my Question #1 – framed that way, the answer is obviously no. But I tried to frame the questions as neutrally as possible, hewing fairly closely to the language in the actual statute at issue.

And yes, it’s a STATUTE at issue. While the plaintiffs in these cases have raised 1st Amendment claims, the Religious Freedom Restoration Act, or “RFRA” (pronounced riff-ruh) is where all the action is – if they win RFRA, the Court won’t even reach the First Amendment issues, and if they lose on RFRA, they almost certainly lose on First Amendment as well. So no matter what happens, Congress has at least the notional power to change it afterwards.

So let me make my predictions, and then explain them.

  1. 7-2 for a qualified “yes.” (But the “qualifications” on those 7 votes might vary)
  2. 5-4 for a “yes”
  3. 5-4 for “no”
  4. 5-4 for “no”

1. This is the one I know the most about since I wrote a brief on this issue specifically. Based on the history of the statute and where the Justices were at oral argument, I think there won’t be much support for the idea that a for-profit corporation cannot, as a categorical matter, never exercise religion.

This issue will also receive the most belly-aching in the sphere of liberal thought – “Corporations don’t have souls.” But I don’t think anyone would suggest that incorporated churches can’t have their religious exercise burdened by a law, just because the Church doesn’t have a soul. And once you’ve said that one corporation can exercise religion, you need a pretty good reason to say that this other corporation can’t exercise religion.

Of course, “one is a church, the other is a business” seems like a perfectly reasonable dividing line (albeit one that still doesn’t turn on the question of corporations having souls). But I think that falls down if you push too hard on it. First, as I alluded to earlier, there are clearly for-profit corporations that nevertheless have a religious component – obvious cases like kosher delis and Christian book stores, but less obvious cases as well, like Shariah-compliant banks that lend money in accordance with Islamic principles. Lots of people combine their religious lives with their business lives, and I don’t think RFRA was intended to exclude them from its protections.

That said, there remains the question whether these particular plaintiffs have shown that, notwithstanding their for-profit nature, they are a “religious” corporation. My 7-2 prediction is premised on the idea that some of the court’s more liberal justices will write a concurrence, recognizing that some for-profit corporations exercise religion, but arguing that these particular plaintiffs either don’t count, or that the case should be remanded to fact find if they do. In the end, though, I think Kennedy and the conservative bloc will easily vote for the plaintiffs to assert standing in their corporate capacity.

No matter what happens, the standing will be limited to corporations like Hobby Lobby and Conestoga Wood – closely held, family owned, with a fairly well established record of religious activity. The Chief Justice strongly signaled at oral argument that the standing of these plaintiffs could be resolved without deciding whether or not Microsoft or GM can exercise religion.

If I’m wrong, it will be because they decide that the individual owners have standing in their own right, and they will decline to reach the issue of corporate standing. That said, I don’t think I’m wrong on this – that holding would be extremely messy, and doesn’t really match with the way the conservative Justices have treated corporate standing in the past, or how they treated the issue at oral argument.

2. This is where I’m most likely to be wrong, and where I think the press is most likely to get a surprise next week. I’ll explain my prediction a bit first, and then say why.

So “substantial burden” has a tortured legal history, but the basic question is this: does the law either a) force a person to do something that is against their religion or b) ban them from doing something demanded by their religion. Here, we’re pretty clearly dealing with an (a) situation – the Mandate arguably “forces” the plaintiff corporations to provide a product that causes the termination of a fertilized embryo.

The key exchange here was Justice Kennedy’s worry at oral argument that a ruling which says the Mandate is not a substantial burden on religion would almost certainly mean that a similar Mandate for other kinds of abortion would not be a substantial burden as well – and he didn’t seem ready to go there. The Mandate imposes stiff penalties on an employer that refuses to fund contraceptives, including those that the plaintiffs believe cause the termination of a life. And the plaintiffs beliefs control the substantial burden inquiry, though the Little Sisters case might put pressure on that down the road.

If’ I’m wrong, it will be because of an issue that did not receive much attention until oral argument. The issue is this: as an alternative to providing the contraception or paying the fine, the companies have the option of foregoing insurance altogether. In that event, they pay a fine, but the cost of that fine is arguably offset by the savings in insurance premiums – in that light, then, the plaintiffs religion has not been burdened, because they have a financially-neutral alternative to the action that they protest religiously.

The problem is that this argument doesn’t have nearly the factual record it would require to resolve this issue dispositively – no one really knows if this option is in fact financially neutral. It would probably take a trial with financial experts, etc. to determine the impact, and it would vary widely across companies. More to the point, at least one of the plaintiffs, Conestoga Wood, alleged that providing insurance was itself a religious imperative. At the very least, this allegation would need to be developed at trial below. So if the Court takes this option, expect a lot of upset court-watchers – it means that the cases would go back down to the District Court, almost certain to rise back up the high Court in a year or two.

I don’t think the Court wants that, so I think they will find that there is a substantial burden. The “no insurance” option will be dismissed as a non-starter. The cleanest way to do that is probably to argue that because of the uncertainty associated with providing no-insurance (how much will it save? will you lose employees? etc.), that option is as coercive/financially destructive as paying the fine.

3. and 4. There’s not much to say about the compelling interest and least restrictive means tests. The caselaw behind these tests is notoriously inconsistent, and these kinds of policy concerns are where ideological preferences are most likely to show their stripes. I think you’ll see a tight split on both of these issues, no matter which way it goes.

If the Obama administration wins, it will be a 5-vote majority, finding that there is a compelling interest, and that the interest is pursued with the least restrictive means. If the Mandate passes this test, the Court can even refrain from answering #1 and #2 definitively – it doesn’t matter if there’s RFRA standing and a substantial burden if the “strict scrutiny” test is passed.

That said, I don’t think the liberal bloc has the votes for this option – particularly on least restrictive means, I think it’s a stretch. As a result, I think you get 5 votes, maybe even 6 (Breyer was a possible) for “no” on 3 and 4, and I think the Mandate goes down.

Now, the purpose of this blog has always been to explore predictions, and try not to practice the type of empty-headed punditry that seems to dominate the news. So I’ll lay out my “Main Prediction,” that I think is the smartest money, but outline two alternative scenarios as well.

Main prediction: There’s strong support for corporate standing, but a fractured standard for determining who is eligible for that standing. There are at least 5 votes for holding that Conestoga and Hobby Lobby can exercise religion. Similarly, there are at least 5 (but probably no more than 6) for holding that the plaintiffs’ religion has been burdened, and a similar number of votes for holding that the contraception mandate is not a compelling government interest or the least restrictive means.

“Punt” prediction: If the Court is really worried about the no-insurance option, they might remand for further fact finding on this issue. In this scenario, they resolve the corporate standing question, but decline to answer the substantial burden question on the existing facts – instead, they’ll articulate a test for determining whether or not the no-insurance option is a viable alternative. The test will probably be fairly fact-intensive, and will probably be fatal for the Mandate in practice – it’s unlikely the Obama administration really wants to litigate this one for every business that claims it is burdened, so they’ll open up the exception process that has already been extended to religious non-profit groups.

Liberal surprise prediction: If the Obama administration wins, it will be narrow – 5 votes, probably only answering “Yes” to 3 and 4, and leaving 1 and 2 as “assumed without deciding.” This is possible – it gives the Court a lot of freedom in the future to recognize corporate standing or a substantial burden on different facts.

That said, I think the nature of RFRA and its history at the Court will mean the death of the Mandate. RFRA was always a bit of a finger in the eye of the Court after Employment Division v. Smith, and a case like this is a perfect opportunity for the Court to turn to Congress and say – “You made this mess, now deal with it.” For that reason, I think it will break against the Obama administration, though the “punt” scenario I outlined above is certainly possible as well. Either way, we’ll see what happens in the next two weeks, and I’ll be back to see how I did.

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The Fox Knows Many Things….like how to take advantage of a Government shutdown.

This one warrants me breaking my blogging hiatus/temporary retirement:

The government shutdown, now entering its third week, has sidelined groundskeepers at the White House, who are barred from tending Michelle Obama’s kitchen garden and other White House plant life beyond the most basic acts of watering and taking out the trash.


“The wildlife that lives on the historic 18-acre campus—including a newly arrived fox now making a home at the White House—are having a field day,” Kohan reports. “Thanks to the shutdown, groundskeepers have given up on their efforts to catch the elusive creature, who showed up to live inside the White House gates more than two weeks ago. [The fox] has been spotted many times at dawn and dusk” according to the White House sources she says are “highly reliable and multiple.”


A Fox! At the White House! Because of partisan intransigence and blind faith in the power of one’s own beliefs over reality! love literally everything about this story. While the hedgehogs in Congress stick to knowing just one thing at a time, the Foxes move in…..

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Takedown of Fox News Charlatan

Fox News has a report up about a “whistle blower” who claims that Special Operators could have been in Libya in time to stop the attacks that killed American embassy personnel on September 11, 2012. It’s nonsense on the face, and there’s nothing that pisses me off more than charlatans (who, in this case, hide behind anonymity) fuel nonsense conspiracy theories. We have legitimate security issues that need to be addressed; the Libya situation has important lessons to teach us about unintended consequences, the importance of on the ground intelligence and about the important (and dangerous) work done every day by the Department of State. These conspiracy theories distract us, so it’s good to see such an epic take-down of the allegations:

On April 30, 2013, Fox News aired an interviewwith a supposed member of U.S. Special Operations Command who said that members of “C-110,” who were training in Croatia on September 11, 2012, could have both arrived at the Benghazi consulate in 4-6 hours and arrived before the second attack on the annex during which Tyronne Woods and Glen Doherty were killed. The mystery man critiques the Obama administration’s decision-making, yet offers no information as to how C-110 would have influenced the battle in such a way that the outcome would have been different. Perhaps because it was actually impossible for C-110 to arrive before the attack, and if they did, they would not have been able to do anything that would have prevented our heroes, Woods and Doherty, from being killed.

Read the whole thing. He shows that this guy is either a publicity hound or just has no idea what he’s talking about – the fact is that the attack took less than 8 hours. The U.S. military is highly competent, but the world outside of Hollywood simply doesn’t allow a large organization to act that quickly (and, as the author points out, there’s no guarantees that the SPECOPS would have been able to save any lives. The later deaths were caused by mortar rounds – which SPECOPS soldiers aren’t immune from).

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One Year

One year ago, a classmate was killed in Afghanistan. He was married to a good friend, and was truly taken too soon. He chose one of the hardest and most dangerous jobs around, and died serving his country. Fair winds and following seas.


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Beat them to it

I’m taking a rare break from my blogging hiatus to highlight this website, bostonmarathonconspiracy.com. It’s currently just a white page with some simple text, explaining that the domain was purchased just to keep conspiracy nuts from getting to it first.

It’s an unfortunate truth that conspiracy theories about yesterday’s tragic event sprung forth almost immediately, before literally ANYTHING was known about the attacks. They will continue.

The best thing that can be done is just to ignore them, or, failing that, marginalize. I can think of nothing better than making sure that the very first result for a Google search of “Boston Marathon Conspiracy” points to this website first, instead of some (aptly named) “Conspiracy Kook”‘s website. So I’m posting a link to add my own (exceedingly meager) PageRank to this website – SEO can be used for good, too.

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Double Dose of Overthinking Like a Fox

I’m back over at Overthinking It, this time in both podcast and blog form.

First, I’m on the Podcast this week, talking about the Hobbit (which I haven’t seen) and Life of Pi (which I have). It’s the usual mix of jokes and attempts at analysis, so if you haven’t listened to me on the POdcast before, give it a shot.

Second, I’m Overthinking two of my favorite Christmas movies, It’s a Wonderful Life  and Miracle on 34th Street:

Bailey Building and Loan vs. Macy’s Incorporated

Shortly after the close of World War II, two Christmas classics were released just six months apart. It’s a Wonderful Life (Dec. 1946) and Miracle on 34th Street(May 1947) have both found a place as feel-good Christmas classics, still shown 60 years later to children that grew up on them. Likely because of their close proximity to the good feelings of VJ day and the return of so many soldiers, both are firmly placed as Christmas staples. In addition to their close release and Christmas theme, the two share certain plot elements as well. Both films take place firmly in the world of business and commerce, with the Baily Brother’s Building and Loan and Macy’s Department Store supplying the bulk of the setting. Both stories share a central conflict of a decent man facing wrongful imprisonment and a triumphant ending that rights the wrong.

Because of the centrality of capitalism and justice to the plot, both films have a lot to say about the American dream and the values of democracy and capitalism. While both Miracle and Wonderful Life tell an ultimately uplifting tale, the two films have diametrically opposite statements about the relationship between moral people and moralinstitutions.

It’s a Wonderful Life is deeply cynical about the institutions that dominate American life. Capitalism gets it the worst – the defining characteristic of the villainous Potter is that he’s a banker. He is greedy and horrible, the embodiment of everything that wrong with a capitalist society. He is practically cartoonish in his villainy, with a skull on his desk, an evil cackle and a  mute body-servant.

But Potter isn’t the only enemy – capitalism itself does its level best to destroy George Bailey. We’re shown repeatedly that George is the best and brightest of his generation, but the dire economic circumstances of his family and his town prevent him from doing anything more than getting by. Capitalism is supposedly a meritocracy, but George’s life is dominated by harsh economic reality.

From a philosophical standpoint, capitalism isgenerally justified by the argument that we’re all better off if everyone acts in his or her own rational self-interest. Bailey Bros. Building and Loan, we’re told again and again, is the antithesis of this idea – George runs the S&L not to make a profit but for the benefit of the town. We’re shown quite explicitly that his selflessness is literally the only thing standing between the town of Bedford Falls and ruin.

Government is treated little better. While the government employees of Bedford Falls are not really against George Bailey, the government itself is utterly beholden to the moneyed interest. Despite being George’s friend, the prosecutor is (mostly) powerless against the need to arrest George if he can’t come up with the missing money. The bank inspector is a family man but is still portrayed as the worst sort of bureaucrat, completely captured by a system that demands obedience. In the world of Wonderful Life government is, at best, not actively out to destroy the little guy, but largely powerless to help.

(hit the link for the rest!)

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Election Eve Predictions

Well, the election is almost over, and with that done we can get back to the stories that matter – petty squabbling over the legitimacy of the election results, bitter partisan fights over the looming fiscal cliff and brutal recriminations inside the losing party. Wait, was I supposed to make you feel better? OK, how about this – no more ads. No more robo-calls. No more surveys. Pretty soon we’ll be into the college football conference championship games, and then we’re into the bowls and NFL playoffs. Soon we’ll be eating Thanksgiving turkey and putting up Christmas lights. All will be right with the world, regardless of who wins. The news cycle will be back to semi-normal, filled with nothing but groundless speculation about the 2016 election by political junkies desperate for a fix. Darn, I was doing well there for a second.

Anyway, since the election is tomorrow, and this blog is at least nominally about making predictions  I figure I should probably make some, though you’re probably a lot better off just listening to Nate Silver. I’ve found the attacks on him over the last week or two to be somewhere between distasteful and disgusting. If you want to criticize the results, criticize the model, not the man – he’s been extremely transparent about his methods. He’s not a pundit, if you don’t like what his numbers say, figure out why the numbers are wrong, but don’t attack his motives or character – it’s clear to any one paying attention that if the numbers were for Romney he’d reporting them in the same way.

So here’s some predictions:

1. Obama will win the election – Obviously this is not a earth shattering prediction, but it’s also consistent with the one I made last year, when Obama appeared to be a much more vulnerable candidate. I was wrong, though, about the reason – I suspected that Romney would lose a couple percentage points off of his base due to his Mormon faith, and there’s been no evidence of that so far. Whether I overestimated the negative effect that Mormonism would have or underestimated the hatred for President Obama, I think Romney will have troubles locking down his base.

The problem, though, is that he’s having a tough time locking down any one else. The Democrats have done a pretty solid job of locking down a wide array of different voting blocs, and Romney’s extreme positions in the primaries severely limited his tactical mobility in going after some of those blocks.

Ultimately, I think Obama will win in 2012 for the same reasons that Bush won in 2004. Obama and Bush both came into a reelection bid with a notionally weak position, but a reserve of goodwill and likeability. The Democrats in 2004 and GOP in 2012 both saw blood in the water, and figured their best chance was with an “Anyone-but-_____” candidate. Kerry and Romney present a similar appeal to the voters – a smart but stiff guy who you’re not quite sure where he stands. In the “Who would I want to have a beer with?” test, Kerry and Romney both lose pretty solidly to Obama and Bush.

Mini prediction – expect to see a lot of 2004 2012 comparisons once the dust settles on this election.

2. The popular vote will be extremely close, and might even break to Romney – but you shouldn’t care. Signs are pointing that Obama may be gaining slightly in the national polls, indicating the popular vote might go his way. That said, I think the popular vote will be really, really tight. It’s been that way throughout the cycle, and I think the Democrats in particular are going to suffer from an enthusiasm gap in their “Safe states” like California where they would pad their vote totals. Compound that with solid-blue states New York and New Jersey recovering from Sandy, and you’ve got a lot of Democrats potentially not voting – this won’t effect the Electoral College too much, but might depress Obama’s margins enough to flip the popular vote.

If that happens…

3. Hilarity will ensue. A popular/electoral college split is extremely rare – there have only been 3 in history, so it would be pretty unlikely, but it’s interesting that the last one happened in very recent memory. This means that unlike in 2000, each side’s pundits and talking heads will have taken positions on the legitimacy of a President who fails to win the popular vote – and will have to scramble to reverse themself.

This blog was inspired by Philip Tetlock, a political scientist who has studied predictions extensively. One of the things he says is most notable about our system of pundits and “experts” is that there is virtually zero accountability for past predictions and positions that turned out to be wrong. If Obama wins the Electoral College but loses the popular vote, we will all get the joy of watching people on both sides of the aisle scrambling to reverse the positions they wrote so eloquently for their 2000 Op-Ed pieces about the brilliance/stupidity of the Electoral College. And that will be hilarious to watch.

*: Interesting conspiracy theory/note: The first two Electoral/Popular splits happened in 1876 and 1888 – 12 years apart. The last one happened in 2000 – 12 years ago. Maybe we’re due. The Redskins also lost, so a popular vote split allows the true believers of that theory to keep it alive for a little while longer.

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