Supreme Court rules for Hobby Lobby, against unions

June 30

(Photo by Justin Sullivan/Getty Images)

On Monday morning the Supreme Court released its final two opinions in argued cases this term.

First, in Harris v. Quinn the Court held 5-4 that the government could not force home care personal assistants to pay union dues if they did not wish to join the union.  Mandatory payment of such a fee, Justice Samuel Alito wrote for the court, would violate the First Amendment rights of the objecting PAs.  Of note, to reach this conclusion the court refused to extend Abood, a prior decision authorizing the mandatory collection of union dues for public employees.  What is more, the court was quite critical of Abood, questioning its rationale and calling it an anomaly in the court’s jurisprudence.  Yet  none of the justices in the majority wrote separately calling for Abood‘s reversal. While this opinion is narrow, combined with Knox v. SEIU from 2012, it may spell trouble for public sector unions down the road and could foreshadow the eventual over-ruling of Abood.   Justice Elena Kagan wrote the dissent.

Second, in Burwell v. Hobby Lobby, the court held 5-4 that closely held corporations cannot be required to provide coverage for contraception services for their employees if the owners object to such coverage on religious grounds.  Contrary to some early reports, this decision is based on the Religious Freedom Restoration Act (RFRA), and not the First Amendment. (In other words, this is a statutory decision, not a constitutional one.)  According to the court the contraception coverage mandate is not the least restrictive means for ensuring access to contraception.  In order to reach this conclusion, the court concluded that the RFRA applies to closely held corporations.  Justice Alito wrote this opinion, as well.  Justice Anthony Kennedy wrote a concurring opinion.  Justice Ruth Bader Ginsburg wrote the primary dissent, joined by Justice Sonia Sotomayor in full and Justices Kagan and Stephen Breyer in part.  Justices Kagan and Breyer wrote separately to note that they saw no need to decide whether for-profit corporations or their owners could bring claims under RFRA.  I suspect some of us will have more to say about this decision soon. [UPDATE: Here's a list of recent VC posts on Hobby Lobby, including Eugene's analysis of the opinion.]

Although both of Monday’s rulings were decided 5-4, the court still set a post-war record for the greatest degree of unanimity in decided opinions.  Over 60 percent of the court’s decision this term were unanimous in the judgment.  As Neal Katyal noted last week, the court has not shown this degree of unanimity in its decisions since 1940.  The number of 5-4 decisions was also down to 15 percent of cases decided after argument. This does not mean the justices do not continue to disagree on many questions — of course they do.  What it means is that despite these disagreements — and despite a term filled with divisive questions — the Supreme Court managed to reach unanimous judgments a remarkable amount of the time.

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.
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