Sometimes Supreme Court dissents (and even concurrences) can read like one sibling tattling on another for doing something wrong. “The majority ignores history and reads things into the text of the Constitution that the Founders never intended!” cried the conservatives in National Labor Relations Board v Canning. “The majority ignores legislative history and improperly extends protections to entities that Congress never intended to protect!” cried the liberals in Burwell v Hobby Lobby.
Episodes of judicial tattling – court members calling one another out in writing – are nothing new. They have, however, become so frequent and visible of late that one blogger has coined a term for them – “benchslapping.” One of the more striking things about Canning and Hobby Lobby, Supreme Court decisions handed down this past week, is that the two factions on the Court are “benchslapping” one another for engaging in virtually identical judicial behavior. These fractured opinions, even when cloaked in the veneer of unanimity, serve as yet another indicator of how polarization has taken root at the branch furthest removed from electoral politics. And with the midterm and presidential elections in sight, the justices are doing their best to convince the highest court in the land – the court of public opinion – that they, not their Supreme Court siblings, are in the right.
NLRB v Canning, the opinion invalidating President Obama’s recess appointments to the National Labor Relations Board, was decided unanimously. This is true, but also misleading. Moving beyond the vote to the written opinion reveals a Supreme Court that is deeply divided about the scope and legal reasoning behind limiting the president’s recess appointment power.
A slim, five-justice majority consisting of the liberal bloc (Ginsburg, Breyer, Kagan, Sotomayor) plus the swing-justice (Kennedy), kept the door open for Obama and future presidents to use the recess power appointment, indicating that somewhere around 10 days would be enough to constitute an intra-session recess and trigger the president’s appointment power.
The concurring opinion, authored by Justice Scalia and joined by the rest of the conservative bloc (Roberts, Alito, Thomas) would have slammed that door shut altogether. The opinion, which reads more like a dissent, eviscerates the majority for its purported misuse of history and precedent, for ignoring the plain text of the Constitution, and for inventing a limiting principle (where did the ten-day rule come from?) that finds no support whatsoever in the Constitution. The conservative bloc characterizes the majority’s opinion and reasoning at various points as “fumbling,” “absurd” (twice), “vague” and an exercise in “judicial adventurism.” It is difficult to see this as the decision of a unanimous Supreme Court, despite what the vote breakdown indicates.
Burwell v Hobby Lobby is more along the lines of the garden variety five-four Supreme Court split; the kind we have become increasingly accustomed to since the mid-1990s. The conservative bloc, now claiming the swing justice (Kennedy), interpreted the word “person” in the Religious Freedom Restoration Act (RFRA) to include for-profit corporations in addition to natural persons and non-profit corporations, like churches. This has the effect of providing heightened religious liberty protections for a sub-set of “closely held” corporations – corporations where five or fewer individuals control a majority share of the business. Moving forward, it will allow these corporations to claim exemptions from federal rules and regulations, like the Affordable Care Act’s contraceptive mandate.
The liberal bloc in this case, led by erstwhile women’s rights crusader Ruth Bader Ginsburg, chastises the majority for blatantly ignoring the legislative history, for reading an intent into the legislation that never existed, for inventing a limiting principle that is unjustified by the text or history of RFRA (why only “closely-held” corporations and not all corporations?), and for downplaying the sweeping implications of the ruling. In writing for the dissent, Ginsburg, who is known for a softer but still pointed style of “benchslappery,” calls the majority’s decision “startling,” “radical,” and worries that the majority has ventured “into a minefield” with its “immoderate” reading of RFRA.
The opinions handed down this week in Canning and Hobby Lobby – in addition to their important policy consequences – continue a very visible and very troubling trend of polarization and division on the Supreme Court and undermine recent reports of increased unanimity inside the Marble Temple. But the battle of words we are witnessing is not just sibling squabbling. It has a greater, more public purpose. Yes, the justices are appealing to future courts and lower courts. But they are also appealing to a higher court – the court of public opinion. It is there that the public, through their votes in the next midterm and presidential elections, will tip the balance of power on the Supreme Court definitively. Until or unless that happens, we shouldn’t expect the justices to play nice with one another.
Amanda Hollis-Brusky is an Assistant Professor of Politics at Pomona College. She is the author of the forthcoming book Ideas with Consequences: the Federalist Society and the Conservative Counterrevolution.