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Will Judiciary’s Cynicism Prevail? (317)

Looking at the Supreme Court’s Fall Term

10/09/2015 Comment

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The U.S. Supreme Court began another court term this month, with a number of important cases on its docket, ranging across subjects like religious liberty, the death penalty and abortion.

The court, according to legal scholar Bruce Frohenn, speaks of “legal cynicism.” Speaking in particular of the Obergefell decision that redefined the institution of marriage across the country, which is indicative of a larger trend, Frohnen notes the 5-4 decision “substitutes the will of judges for the rule of law. It demands of the people that they forgo their obligation to follow and uphold the law of the land and instead bow to the will of the rulers.” The high court sees itself more as the exponent of certain moral principles, which it then tries to find in the Constitution, rather than the mere arbiter of disputes between parties, let alone only one of three co-equal branches of the national government, each of which is charged with interpreting and defending the constitutional system.

The religious-liberty case likely to be most closely watched is one that the Supreme Court has not yet agreed to hear. This is Little Sisters of the Poor v. Burwell,  challenging the so-called “accommodation” to the Health and Human Services’ mandate that requires employers to provide free contraception, sterilization and abortifacients to employees, imposed under the Affordable Care Act. The court took an ACA case last year, in Burwell v. Hobby Lobby, and its decision was a success for religious liberty. There, the court determined that private corporations like Hobby Lobby could exercise religious beliefs, in this case in opposition to being required to provide certain contraceptive coverage as part of employee health plans.

Although it is not common to take cases on the same question in successive terms, court watchers seem to think the court will hear the appeal of one of the cases addressing the application of the accommodation, the most prominent of which is the case brought by the Little Sisters. At the end of September, the government urged the court to take on the issue. The sisters lost in the federal appellate court, but the Supreme Court stayed the judgment of the court, presumably so the sisters would not have to suffer the imposition of the mandate (or crippling fines if they did not obey) while the court considered their appeal.

These “accommodation” cases, including EWTN’s, address an issue left open in the Hobby Lobby decision, which applied only to private corporations and involved the mandate itself. The ACA, however, has permitted an “accommodation” to the mandate, which applies to religious institutions. However, as the Little Sisters (as well as numerous federal judges) have argued, the accommodation itself is a substantial burden on religious freedom, since it basically involves the religious institutions being part of actions they consider immoral. The accommodation allows the government to determine when religious freedom is infringed, which is inconsistent with the constitutional tradition of not opining on the religious beliefs of others.

Other cases to watch involve the intersection between health care and abortion rights, although, again, the court has not explicitly agreed to hear the cases. Texas and Mississippi both passed laws requiring doctors at abortion facilities to have admitting and staff privileges at hospitals. The same federal appellate court upheld the Texas law but not the one in Mississippi, because the effect of the law would close facilities in the latter state but not the former, thus resulting in, according to the court, an “undue burden” on women seeking abortions in Mississippi. The reasoning of the court in such a case will be very interesting to see, considering the dueling claims to promoting the “health” of patients.

In some of the ACA cases, lower courts have stated that promoting “health,” including providing contraception, is a compelling government interest, one so strong that it can trump constitutional rights such as religious freedom, if properly tailored. In the abortion-facility cases, Texas and Mississippi have asserted that requiring hospital privileges for abortionists also furthers the legitimate interests of the state in the health of its residents. That is, even if you believe abortion is a right as the Supreme Court does, the court still needs to consider whether measures such as the ones in Texas and Mississippi do in fact further legitimate state interests.

Also on the docket are cases that center on capital punishment. Although undoubtedly constitutional, many members of the current court have been openly hostile to its imposition, arguing that (in the words of Justice Anthony Kennedy) “evolving standards of decency” have rendered capital punishment cruel and unusual, in violation of the Eighth Amendment. Although some have accused this line of reasoning as constitutionally suspect, because the Eighth Amendment was passed at a time when capital punishment was widely accepted in the new United States, Kennedy’s apparent view is not inconsistent with Catholic teaching. The Catechism of the Catholic Church provides that although the death penalty, with due process, is consistent with Church teaching, in modern nations the conditions for its imposition are “very rare, if not practically nonexistent.”

Yet this question also illustrates why the opinions of the court have been so divisive. Looking to non-legal sources, such as “evolving standards of decency,” can quickly allow judges to create legal principles where there were none before. It is also arbitrary; as Justice Antonin Scalia has noted, Justice Kennedy picks and chooses which “standards” to rely on, all in service of a particular ideological position. Too often, in the search for “evolving standards,” judges end up looking in the mirror of their own desires. That tendency, more than any one decision, will ultimately degrade the Supreme Court as a legal institution into just another government agency seeking to increase its power.


Gerald J. Russello is a lawyer and editor of The University Bookman (

Filed under legal issues, supreme court