In footnote 19 of her dissent in Hobby Lobby, Justice Ginsburg writes the following:
“Closely held” is not synonymous with “small.” Hobby Lobby is hardly the only enterprise of sizable scale that is family owned or closely held. For example, the family-owned candy giant Mars, Inc., takes in $33 billion in revenues and has some 72,000 employees, and closely held Cargill, Inc., takes in more than $136 billion in revenues and employs some 140,000 persons. See Forbes, America’s Largest Private Companies 2013, available at http://www.forbes.com/largest-private-companies/.
To illustrate her point, one would think that the two best examples would be the two largest privately held companies. And, according to Forbes, Cargill is indeed the largest by revenue. But Mars is not #2; it is #5. When Justice Ginsburg took a look at the Forbes list, why did she choose #5 Mars for her second example rather than the much larger #2?
As it happens, the second-largest privately held company in the United States, by revenue, is Koch Industries.
So why Mars and not Koch? Did Justice Ginsburg sense that, even as written, her dissent might be accused of a somewhat partisan tone? See, e.g., “The Political Ginsburg,” Editorial, The Wall Street Journal, July 2 (“Justice Ginsburg’s dissent is … a political opinion whose purpose seems to be to mobilize opposition to the Court and perhaps even motivate Democrats to turn out at the polls.”). Was she concerned that a reference to Koch Industries might make her opinion seem more political?
Mentioning Koch would inevitably have sent a certain sort of partisan signal. But does deliberately not mentioning Koch also send a signal? Was Justice Ginsburg hoping that we wouldn’t notice? Or hoping that we would?
Or should I maybe just get out more often?