One of the Worst
People who know me know that I tend to avoid hyperbole. People who read my work probably come to the same conclusion. Even above in the title to this piece I have hedged my bet. This essay is about as close to hyperbole as I’m going to get. . . .
The US Supreme Court, perhaps by dint of its very nature, has been controversial. It was created in 1789, and since that time, it has handed down more than 25,500 rulings. SCOTUS has reversed itself only about 150 times in the past 235 years. In other words, in a few cases even the court itself thought that it got the ruling wrong.
In the other 25,350 cases, the court has let its rulings stand.
Even so, historically we have seen cases that have been ruled as brilliant, and some that have been considered horrendous. To be fair, I suspect that no case exists in which everyone agrees on it.
For example, in a blog post on FindLaw, Casey Sullivan lists 9 SCOTUS rulings that history has deemed “mistakes” and/or “controversial.” Sullivan includes the 1857 Dred Scott v. Sanford case and calls it the “worst Supreme Court decision ever.” That case, in case you’ve forgotten, argued that African American were not and could not be American citizens. It was eventually overturned via the 13th and 14th Amendments. Not far behind it were the 1883 Civil Rights cases, which basically argued that the federal government could not regulate private business, and so private businesses were free to racially discriminate. The spectre of this 1883 case remains with us today!
Sullivan also includes cases that address “separate but equal,” employees rights, eugenics, Japanese internment, sodomy laws, presidential elections, and political donations. Indeed, the last case, Citizens United v. FEC (2010) is also commonly considered to be one of the worst SCOTUS decisions.
It’s hard to argue with Sullivan on these nine cases. Nevertheless, people will and do argue that these cases were NOT egregious miscarriages of justice. Some would argue so out of racial or sexual prejudice (Steve Bannon and Steven Miller come to mind). Others argue from a legalistic perspective. For example, I know lawyers who have always maintained that the 14th Amendment was wrongfully applied in cases such as Loving and Roe. They were not necessarily opposed to the effect of the ruling, but argued against the legal logic of the ruling.
Nevertheless, those nine cases were egregious.
However, I want to look at a case that does not usually get included along with the others: Burwell v. Hobby Lobby Stores, Inc. (2014). As far as I am concerned, it belongs among the worst SCOTUS ruling in history.
Some background.
The Hobby Lobby case was actually several cases. However, at its heart, it involved Hobby Lobby (an arts and crafts store), which is owned and operated by first David Green and then by the Evangelical Christian Green family. As the name suggests, the Greens are devoutly religious. While their stores provided employees with contraception under the Affordable Care Act, they opposed that requirement and argued that it violated their religious freedom.
The case, then, pitted two Acts against one another. In 1993, Congress passed the so-called Religious Freedom Restoration Act (RFRA). That Act required “strict scrutiny” of any “neutral law” that might, in some way, impinge upon an individual’s religious exercise. In other words, the court can assume that the law is invalid unless a case can be made for the “compelling state interest” of the law. RFRA simultaneously defined “exercise of religion” quite broadly, and it included beliefs and practices not directly central to a religious system.
The Affordable Care Act (ACA) (2010), more commonly known as Obamacare, required (among other things) that businesses and agencies must provide reproductive health care, and that would include all 20 contraceptives already approved by the FDA. The Act specifically exempts “religious employers” (which includes churches, religious orders, etc.) and non-profit organizations. Private businesses, however, were included.
That did not sit well with the Greens.
In 2012, the Greens sued, arguing that the requirement to provide contraceptives to their employees violated their “exercise of religion” (based on that broad definition of religion), and that it violated the RFRA. They argued that their business should not be required to provide health care that they themselves (the Greens) find objectionable. The case was tried before the Supreme Court on March 25, 2014. On June 30, 2014, the ruling was handed down.
Samuel Alito, writing for the majority, agued that shareholders, officers, and employees are protected by the rights of the corporation. Alito argues that under RFRA corporations are persons. The ruling argues that the requirement to provide contraception coverage amounts to a substantial burden upon the exercise of religion. Further, Alito writes that morality includes not allowing or enabling immoral acts by others. So, even if no employee actually used the contraception, others would be and the mandate enables that. Finally, Alito argues that the case offered no compelling government interest in requiring the health insurance coverage. It argues that other less restrictives means to achieve the same goal were possble.
However, something doesn’t quite add up.
The Greens employed a Corporation in order to shield themselves from liability. The Corporation provides a barrier between the individuals and the shareholders and the business. In fact, Charles Wentworth notes that a “corporate shield” assures that the “shareholders, officers, and directors of a corporation will not be held personally liable for the actions of the corporation.” The corporation exists as a shield. It exists to protect the officers and shareholders from legal liability. It produces a separation of corporation and person.
So, say a company makes a product that causes thousands of people to sicken. The corporation could be liable for costs, including medical bills and law suits. The owners, executives, and employees of the company would not be personally held responsible for those costs. The corporation shields the owners from the financial harm the company might face. The infamous Tylenol contamination case comes to mind, along with the opioid crisis and the Sacklers.
That shield should work in both directions. If the company is required to do something (say, provide health insurance or contraceptives), the company is being required to do so, not the owners. The ACA does not require the Greens to supply contraception. It requires the corporation to supply contraception. They are separate entities.
The Greens would not be financially responsible for the death of a child who chokes on a product sold by Hobby Lobby. By the same token, the corporation cannot be held responsible for the Green’s personal injuries (or grievances). The corporate shield separates one from the other.
In the end what the justices have done is to allow the Greens the protection FROM personal liability, while arguing that the company is not protected from the Green’s personal grievances. The justices have allowed the Greens (and others in similar situations) to have their cake and to eat it too. It makes a mockery of the justice system, and it makes a mockery of the corporate shield.
The separation of corporation and owner MUST work in both directions.
I frequently see calls for Citizens United to be overturned. It was an egregious ruling that has done enormous harm to our political system. The Hobby Lobby case is just as egregious, and it must be overturned, as well.
Ritch Calvin is an Associate Professor of Women’s, Gender, and Sexuality Studies at SUNY Stony Brook. He is the author of Queering SF: Readings, Feminist Epistemology and Feminist Science Fiction (Palgrave McMillan) and edited a collection of essays on Gilmore Girls (McFarland). His most recent book is Queering SF: Readings (Aqueduct Press).
