Things You Hear on NPR: We’re Pretty Sure These Cases We Didn’t Read Support Our Narrative
July 7, 2014
NPR this morning painted a picture in which Republicans twist the courts for partisan advantage:
By the same 5-4 vote, the court’s conservatives — all Republican appointees — prevailed over the court’s liberals — all Democratic appointees — on campaign finance regulations, union power and mandated contraceptive coverage for corporations under the Affordable Care Act. . . .
From the moderate right of the legal spectrum, Harvard’s Fried remarks, “On campaign finance, a cynic could ask the famous question, cui bono? Who profits from this?”
The answer, he says, is clear: the Republican Party, its conservative backers and special interest groups. But is that the result of a conservative legal ideology that narrowly dominates the Supreme Court, or is it a partisan agenda?
“I would need to be a psychoanalyst, and I am not, to say whether the ideological commitment is a superstructure on the cui bono or the cui bono is just a coincidence,” Fried says.
NPR didn’t mention that others have concluded, “Labor unions benefit more from Citizens United than big conservative donors”. (Even NPR observed in 2012, “Citizen’s United Ruling Benefits Union Campaigners”.)
And in the case of contraceptive coverage under Obamacare, the conservative majority for the first time ruled that a for-profit corporation can refuse to comply with a general government mandate because doing so would violate the corporation’s asserted religious beliefs.
In each of these cases, the conservative majority based its ruling on the First Amendment right of free speech or free exercise of religion.
That’s not true; last week’s ruling was not based on the First Amendment. The court’s opinion (Justice Alito’s majority opinion) in Hobby Lobby explicitly concludes,
The contraceptive mandate, as applied to closely held corporations, violates RFRA. Our decision on that statutory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns.
In other words, the court didn’t have to decide whether the HHS mandate violated anyone’s constitutional rights, because it violated the broader freedom of religion protected by the Religious Freedom Restoration Act (RFRA, pronounced “riff-ra”), a federal statute passed in 1993 by a unanimous vote in the House and 97-3 in the Senate and signed by (Democrat) President Bill Clinton. Democrat majority leader Harry Reid now wants to bemoan it and play identity politics (to which Charles C. W. Cooke’s piece is the appropriate answer), but Reid voted for RFRA—he was even a co-sponsor! (source linked from this page)
Never let the truth get in the way of a good story, I guess.