The stupidest sentence in the article is this:
Solicitor General Donald Verrilli, who was defending the law, invested heavily in the argument that for-profit companies like Hobby Lobby simply do not have rights to religious expression under the First Amendment.No, he didn't! Quite aside from the fact that he got nowhere with the argument that for-profit corporations should be treated differently from other corporations, the rights in question were not under the First Amendment. They came from a federal statute called the Religious Freedom Restoration Act, which Toobin never mentions in his article!
If you know one thing about the First Amendment's Free Exercise Clause, you know that it doesn't stop the government from imposing neutral, generally applicable laws even if they burden religious believers. If you know 2 things, you know that Congress reacted to the Supreme Court's interpretation of the Free Exercise Clause by passing the Religious Freedom Restoration Act to require religious exemptions. Everyone in the House voted for it, all but 3 Senators voted for it, and Bill Clinton signed it. It's a text that Congress could amend, and Congress could have written an exemption from it into the Affordable Care Act. Everyone including Verrilli admits it covers corporations, and Verrilli had to try to argue that the Court should divine what Congress really wanted and read an exclusion of for-profit corporations into it.
How can you write about the Hobby Lobby case without mentioning the Religious Freedom Restoration Act? It's blatantly, atrociously deceptive. Toobin proclaims that "The issue in the case is straightforward." Yeah, I guess it is when you don't bother to mention the statute the claim is based on. Toobin mentions the other statute, the Affordable Care Act itself, and he asserts that it "requires employers who provide health insurance to their employees to include coverage for contraception." Well, actually, no, it doesn't! Congress did not take the political heat of dealing with contraception (which includes some methods some people think are abortifacients). Congress avoided that static as it pushed through a law by the narrowest possible margin. It left it to HHS to make the regulations that are under consideration.
If you really want to be straightforward and you actually care about what the legislature has done, the Religious Freedom Restoration Act towers over the HHS regs. Congress took the political credit for RFRA. Our elected representatives preened over their enthusiasm for religious exemptions back then. Congress avoided political responsibility — as it barely passed the ACA — for the birth control provisions and Congress avoiding for cutting the ACA free from the RFRA regime of judicially recognized exemptions.
The second stupidest thing about Toobin's article is this cheerleading about female justices. They're "very important" he said. And the headline writer tells us they "rock." What these 3 women did was ask a lot of questions during the argument on behalf of Hobby Lobby, the party they will almost surely vote against, and this was just typical oral argument behavior. Justices ask a lot of questions of the lawyer to whom they are most antagonistic. It's not a special woman thing. If the 3 women are on the same side, it's because the 3 women are on the liberal side of the Court. Spare me your patronizing "girl power" enthusiasm. It doesn't enhance the prestige of the female Justices. Toobin is only expressing a stock allegiance t0 the liberal side of the argument.
Was Toobin around back when RFRA sailed through Congress? If he was, I'll bet he, like all the other liberal politicos of the time, was trashing Justice Scalia for writing the opinion that reined in the Free Exercise Clause doctrine. I googled "Toobin" to see when he became active, clicked on the top item (at Wikipedia)... and dissolved into hilarity to find myself at an article titled "Toobin.'" Toobin' — I learn — was a 1980s Atari Game based on the sport of tubing. Slogan: "It's totally tubular."
Saying "Women Justices Rock" is just about as dumb as calling them "totally tubular," and I am beyond annoyed that I had to write this, which I only did because the death of Jonathan Schell took me back to the once-meticulous and still often quite great New Yorker.
UPDATE: The New Yorker seems to have reacted to this post in what I call a "lame effort at un-embarrassing Jeffrey Toobin."