It can be disheartening to witness the all-too-frequent over-extensions committed by President Barack Obama and his hyperactive executive branch as he casually lopes around constitutional fences en route to his vision for the country. But it’s refreshing to watch the Supreme Court jerk the reins.
And jerk the court has, just enough to let the administration know the bit is still there and perhaps slow the advance to a more manageable gait.
The so-called Hobby Lobby decision was the most prominent and froth-inducing of the SCOTUS rulings this term. But there were others, equally important, that reaffirmed the need for a judicial inhibitor.
First, the high court struck down a Massachusetts law (part of the law, actually) that restricted free speech around abortion clinics. The law established buffer zones around abortuaries, wherein abortion opponents were forbidden to speak to mothers entering the facilities with the aim of trying to persuade them to change their minds. The court found, unanimously, the buffer zones (Antonymous to the “free speech zones” erected at the Bundy Ranch?) did, in fact, violate the Constitution. The court arguably didn’t go nearly far enough — the decision ridiculously failed to recognize the law was narrowly and maliciously targeted at a specific crowd and a specific point of view. But a unanimous decision in a divided court is almost by definition going to be minimalist to the extreme, and the proper decision was rendered nevertheless.
Next, the high court ruling to uphold the D.C. Circuit Court of Appeals Noel Canning decision rescinding Obama’s “recess” appointments of three members of the National Labor Relations Board (an agency whose very existence ought to be ruled unconstitutional) absent an actual congressional recess informed the president he can’t, in fact, make up the rules as he goes along. At the heart of this issue is the right of a legislative body to make the rules by which it operates — a right established over centuries of parliamentary custom and codified for easy reference in the U.S. Constitution. Here, the president was faced with the inability to get his three NLRB nominees — whose anti-business views were too much even for the Democratic-controlled Senate to stomach — ratified through the normal means. His response was to assume the old, archaic rules ought not stand in the way of progress. So he simply proclaimed Congress was in recess, a proclamation that came as a surprise to Congress. The Supreme Court, again unanimously, told the president (sort of) that, yes, those old archaic rules apply.
Like the Massachusetts decision, this ruling fell somewhat short by not outright prohibiting presidential latitude in making recess appointments, relying instead on Justice Stephen Breyer’s loose rationale the number of congressional days off in this case was simply too short to constitute a recess. Nevertheless, the right outcome was, here too, achieved and a much needed restraint applied to the president’s executive recklessness.
A third governmental overreach that was swatted down by the court involved a 2003 decree issued in Illinois that magically anointed most home care workers as government employees — meaning they were all suddenly dues-paying members of the public workers union. (The logic? Well, much of their income came from clients who received Medicaid funding, don’t you see?) Not surprisingly, some took unkindly to being statutorily maneuvered into a union. The case wound up in the Supreme Court, where the proclamation was suitably euthanized.
And, of course, there’s the main judicial event.
In the Hobby Lobby decision, the court found, again properly, a closely held corporation has the right under the Religious Freedom Restoration Act not to be required to subsidize things the owners find morally objectionable — in this case four of 20 specific forms of birth control.
What did the decision deny to women? Nothing. It did, however, produce a lot of irony deaf outcry — keeping the boss out of my birth control decisions while insisting he or she pay for them. Apparently, “reproductive freedom” isn’t as much fun unless someone else pays for it.
This is how the Supreme Court was intended to act, as something of an emergency brake when the government approaches runaway status. Was it a little too restrained? Probably. But like Chief Justice John Roberts said during his nomination hearing, the court’s role is to call balls and strikes. The major corrections should be made at the legislative level.
Meanwhile, it’s nice to know someone at least has a finger or two on the reins.