Althouse: "There's a good lesson in Justice Sonia Sotomayor's heated dissent from a Thursday order in the case of Wheaton College v. Burwell..."

July 8, 2014

"There's a good lesson in Justice Sonia Sotomayor's heated dissent from a Thursday order in the case of Wheaton College v. Burwell..."

"When making an argument, you should be cautious about imputing bad faith to your adversaries — not only because civility has intrinsic value but also because such aggression magnifies the embarrassment if you turn out to be mistaken."

Warns James Taranto, succinctly delineating the mistake: "In order to disprove the government's contention that the mandate is the least restrictive alternative, it is sufficient to establish that there is a less restrictive alternative.... But for the accommodation to withstand a RFRA challenge, the government would have to prove that it is the least restrictive alternative."

29 comments:

Bruce Hayden said...: Couldn't see most of the article - used to be able to with his Best of the Web, but apparently not any more. Bummer.

Still, from what I could read, I think Taranto is correct. Part of the problem that the Administration is facing, at least with Hobby Lobby, is that there is a less restrictive alternative - the waivers that were given to churches and purely religious institutions. That makes it very hard for the government to argue that the least restrictive means were provided to aggrieved parties in these cases.; 7/8/14, 7:44 PM
Heyooyeh said...: Did Taranto provide condescending advice to the oft-uncivil Scalia earlier in the term when he made the biggest mistake the Court has seen in a while?

Just looking for some cruel neutrality here on the hypocrisy of the conservative mainstream media, thx.; 7/8/14, 7:47 PM
PB said...: I think it's a case of a liberal's head starting to explode as they realize what they want to do cannot be justified by law, reason, logic, mathematics, or science. They have only one outlet for their self-loathing and that is the irrational personal attack.; 7/8/14, 7:47 PM
Revenant said...: Best of the Web has moved behind a paywall? Bummer.; 7/8/14, 7:54 PM
Ann Althouse said...: Try Googling the text I've provided. You should get a link that will work that way.

It's terrible that this isn't available for passing around in the ordinary bloggy fashion that Taranto does so well.; 7/8/14, 7:57 PM
Lucien said...: Re Wheaton, what is going to be the practical effect of the case if Wheaton wins?

Suppose an employer refuses to provide something to an employee that is required by the ACA, and the government says "You failed to provide benefit x, you must now pay fine y", and the employer then says "No, I am exempt from that requirement under RFRA". If the government then asks why, can the employer simply say "I refuse to tell you, because telling you would substantially burden my sincerely held religious beliefs"?

If the answer is no, and the employer has to actually articulate its basis for failing to provide benefit x, cannot the government then treat the assertion of that basis as if the employer had filled out the same form at issue in Wheaton?

If the answer is yes, then how can you ever find out the real reason for the employer's failure to provide benefit x?; 7/8/14, 8:00 PM
Mark said...: Here's a less restrictive alternative than the Rube Goldberg system of requiring employers to pay money (premium) to insurers, who then pay money to pharmacies, while requiring the employee and those same pharmacies to submit paperwork to the insurers for payment, all the while leaving a record trail of private medical information.

Simply require employers to pay a sum of money to employees, who are then free to use that money as they see fit, to buy birth control directly or whatever else they want to spend it on, and thereby provide a benefit to everyone, rather than a select few, and without having to go through some convoluted payment scheme.; 7/8/14, 8:02 PM
khesanh0802 said...: @ Mark Do you mean like wages and/or salaries? They already do that so I guess the employees could pay for their own contraceptives now, which apparently have a monthly price equivalent to a twelve pack of Sam Adams - or a pack of Gillette razor blades.; 7/8/14, 8:24 PM
Bob Ellison said...: Taranto is now behind the ubiquitous murdoch wall. Bye bye, Taranto.; 7/8/14, 9:17 PM
The Godfather said...: @Althouse: You're missing the point. The objective of modern liberal/progressive/left politics today is to delegitimize all opposition. Therefore, any opinion or action of which the left disapproves is ipso facto bad faith. Sonia got the memo.; 7/8/14, 9:30 PM
PeterK said...: "Couldn't see most of the article - used to be able to with his Best of the Web, but apparently not any more. Bummer. "

Taranto is now behind the paywall, but if you go to google and type in exegesis sotomayor taranto this will be at the top of the list
http://online.wsj.com/articles/best-of-the-web-today-without-reason-or-empathy-1404757875

long known little secret that you could get around the WSJ paywall by searching for the article via google; 7/8/14, 9:32 PM
Richard Dolan said...: It's interesting that Justice Breyer did not join the dissent, even though he had dissented from an earlier order on the same motion by Wheaton issued on June 30.

Heated dissents are not new at the SCOTUS, and this one by Sotomayor is not particularly nasty as an exemplar of that genre. What is unusual on this one is how little was at stake, from a practical perspective. The Court went out of its way to say that the order, prohibitig the Govt from forcing Wheaton to tell its insurer it had to cover contraceptive care on a cost-free basis to employees, did not stop the Govt itself from informing the insurer of its obligations. So the impact of the order on any actual employees of Wheaton who want free contraceptives, is precisely nothing. The order has no precedential impact on the consideration of the merits of Wheaton's challenge, either.

Perhaps that is the reason why Breyer did not join the dissent -- he's the ultimate pragmatist on the Court, and has little patience with purely academic squabbles. The order preserved what Wheaton said were important religious principles, at no practical cost to the Govt and with no adverse consequence for any employees.

For others, the fact that the order has no real-world adverse impact on anyone is no reason not to turn it into a scream-fest. Lots of people, including perhaps the dissenters, have an interest in seeing the issue of judicially imposed exemptions to the ACA's mandate about free contraceptive care, politicized to a fare thee well. That is especially so four months from an election with control of the Senate -- and its power over future SCOTUS appointments -- in the balance.; 7/8/14, 9:33 PM
Hagar said...: The 1st Amendment says: Congress shall pass NO law ..."

I think it is worth thinking about whether this comes about because Congress is passing laws and garnering powers to the General Government that it has no business garnering in the first place.

Some people are already talking about "the twilight of the Republic." Now, I do not think Obama is a Julius Caesar nor an Octavian, but he certainly is working on turning the U.S. into something other than a republic.; 7/8/14, 9:35 PM
Bruce Hayden said...: Thanks. Googling the quoted title worked just fine. Taranto was the one thing that wasn't behind the WSJ pay wall. But, thanks to the suggestion by Ann, all is well.

I think that Taranto did a pretty good job with the law there. Nothing really to add.; 7/8/14, 10:38 PM
Revenant said...: Just looking for some cruel neutrality here on the hypocrisy of the conservative mainstream media, thx.

Given that there are around four left-wing news outlets for every one right-wing news outlet, a cruelly neutral critic will spend around 80% of his or her time criticizing left-wing news hypocrites.; 7/8/14, 11:23 PM
Brent said...: Taranto's take on of the self-named "Wise Latina" is beautiful and unassailable.

Delicious.

The ladies of the court have disgraced themselves with their poorly and illogically reasoned dissents in both cases. They will be deservedly judged poorly in future generations for just such ill-reasoned opinions.; 7/8/14, 11:30 PM
Revenant said...: If the government then asks why, can the employer simply say "I refuse to tell you, because telling you would substantially burden my sincerely held religious beliefs"?

All the government would have to do is argue that "asking you how to avoid burdening your beliefs" is the least-burdensome way to avoid burdening your beliefs. The Supreme Court would respond with a 5/4 split.

Five justices would endorse the government's position on the grounds of "no shit, Sherlock". The other four would also back the government, but on the more mundane grounds of "duh".; 7/8/14, 11:32 PM
Smilin' Jack said...: "In order to disprove the government's contention that the mandate is the least restrictive alternative, it is sufficient to establish that there is a less restrictive alternative.... But for the accommodation to withstand a RFRA challenge, the government would have to prove that it is the least restrictive alternative."

Religion and government...amusing enough separately, but hilarious combined.; 7/9/14, 12:42 AM
Lem Vibe Bandit said...: Partisanship is blinding that way.; 7/9/14, 5:20 AM
Real American said...: I've been reading BOTWT for a long time. Now they want me to pay for it. I guess I won't be reading it anymore. lame.; 7/9/14, 9:36 AM
Fernandinande said...: the least restrictive alternative

That would be "freedom".

When was the last time you heard a major pol - other than perhaps the Pauls - talk about increasing the personal freedom of US citizens?; 7/9/14, 10:22 AM
Fernandinande said...: The Supreme Court would respond with a 5/4 split.

Since we're supposed to defer to the SCOTUS rather than determining for ourselves which laws are constitutional (almost all, they say) and which aren't (almost all, I say), every 5/4 split decision is a statement that 44% of the government lawyers are wrong. Which is really terrible.; 7/9/14, 10:51 AM
Mike (MJB Wolf) said...: BEHIND THE PAY WALL. Buit you can cut & paste the text Althouse quoted and get a free look this column. Yes it's a bummer they put James behind the wall, but Google once again allows to circumvent rules and see things we probably "shouldn't" ... so YAY for tech!; 7/9/14, 12:22 PM
Bruce Hayden said...: While theoretically, the government should probably be proving that it is using the least restrictive means, the reality is probably the opposite, for the pragmatic reason that it is hard to prove that sort of negative. So, more likely, you see what you saw in Hobby Lobby, with the other party pointing out a less restrictive alternative, and that essentially being the end of that part of the case. It is much easier for them, than getting into a long discussion of whether the government's inability to find a less restrictive alternative is intentional or they actually tried.; 7/9/14, 12:23 PM
Unknown said...: The Sotomayor quote continues to bother me. Effectively she's saying: "Just because you sincerely think your religious beliefs are being substantially burdened doesn't make it so. It's only when I think your religious beliefs are being substantially burdened that it's so."

It ain't your call, honey. As Instapundit would say: Tar. Feathers.; 7/9/14, 1:11 PM
Kansas City said...: I was astonished at the lack of intellectual basis in Sotomayor's dissent and the fact it was joined by two others. How could none of them, nor their clerks, see the obvious error in her reasoning?; 7/9/14, 5:06 PM
Anonymous said...: Luien:

The Obama Administration "accommodation" is that you fill out a form that causes your insurer to provide the contraceptives / abortificants anyway. Wheaton refuses to fill that form, or do anything else that would cause the insurer they are paying for to provide the drugs that violate their religious beliefs.

Any honest accommodation will start with "the company doesn't have to pay for you to get the drugs." If the Feds are desperate for you to have those drugs anyway, then the Feds can pay for them (after getting a law passed allocating the money).; 7/10/14, 2:21 PM
Anonymous said...: " The Court went out of its way to say that the order, prohibitig the Govt from forcing Wheaton to tell its insurer it had to cover contraceptive care on a cost-free basis to employees, did not stop the Govt itself from informing the insurer of its obligations."

The current top lie of the Obama Administration: the idea that the contraceptives are "free".; 7/10/14, 2:23 PM
Gandydancer said...: Neither Hobby Lobby nor Wheaton College will be able to buy insurance that does not result in their employees receiving free abortifacients because of those purchases, so Hobby Lobby's win is empty and Wheaton's, if it wins, will be similarly about angels dancing on the head of a pin. Further, Kennedy's concurring opinion in Hobby Lobby left less room for skepticism about the efficacy of the pretextual "accommodation" than the majority opinion he signed on to. So, maybe what Sotomayor wrote isn't so crazy, if you understand it to be just directed at Kennedy.; 9/12/14, 11:33 AM