Hadley Arkes, a poor polemicist

Professor Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. He is also Founder and Director of the Washington-based James Wilson Institute on Natural Rights and the American Founding. He is a political scientist.

Arkes is not a fan of mine because of the partial-birth abortion cases I decided and which ended up in the Supreme Court. See, e.g., Hadley P. Arkes, Gonzales v. Carhart: What Hath Kennedy Wrought?, The Federalist Society (June 3, 2007)  (“The old, implausible charge of ‘vagueness’ could be rolled out again, and one could count on Judge Richard Kopf in Nebraska to sustain that claim, or virtually any other colorable ground that people were audacious enough to offer as a ground for challenging the law.”) (requires download of PDF); Hadley Arkes, Good May Yet Come Gonzales v. Carhart opens up a possibility, albeit slight, for further restricting abortion, National Review Online (April 24, 2007) (“My own apprehension was that the Dr. Carharts in the country, or the agents of Planned Parenthood, would simply come into court again with any of the rationales that have worked in the past. Judges like Richard Kopf in Nebraska have already shown themselves altogether willing to credit any argument that is offered by the challengers.”); Hadley Arkes, Natural Rights and the Right to ChooseCambridge University Press pp. 122, 140, 239 (2004) (stating, among other things, that by “preserving [his] commitment to abortion unimpaired, unqualified, [Kopf is] compelled to say things that judges, or cultivated men, could not have said in public in another age. . . . In other words, Dismemberment ‘R’ Us.”).

Now, I don’t care a bit about what Arkes thinks of me or my decisions. Indeed, he is not a lawyer, and I find his thinking shallow. Moreover, he is a “natural rights” devotee and I agree with Bentham that such stuff is “nonsense on stilts.” That said, Brother Arkes is entitled to pick his own poison. But I draw the line when he accuses me of being a Catholic-hating religious bigot.*

In Another Opening, Another Show: The Red Mass of 2014, The Catholic Thing (October 7, 2014), Arkes writes the following about me in the context of the Red Mass** attended by Chief Justice Roberts, and Associate Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, Stephen G. Breyer and Elena Kagan at St. Matthew’s Cathedral in Washington, DC:

In the aftermath last year of the Hobby Lobby case, one federal judge, Richard Kopf, denounced that decision as one produced by “five male justices of the Supreme Court, who are all members of the Catholic faith.” The offense imputed to these Catholic judges is that they shielded a businessman from the obligation to purchase abortifacients for his employees when he bore deep moral objections to abortion.

“To the average person,” said Judge Kopf, “the result looks stupid and smells worse.” No, the average person is more likely to wonder why women cannot afford contraceptives and abortifacients for themselves. Or why the provision of these devices should become the obligation of an employer – and why they should be forced on a generous employer who has moral objections to them.

A small trip down memory lane may bring back Judge Kopf as the federal judge who treated with contempt the work of the legislators in Nebraska in seeking to forbid the grisly procedure named “partial-birth abortion.” In that procedure the head of the child was punctured and its brains sucked out. But Judge Kopf couldn’t see how this procedure could be distinguished from others, quite beyond challenge.

For other abortions “routinely ‘deliberately and intentionally’ deliver ‘vaginally’ a ‘substantial portion’ of a living fetus in order to kill it.” In other words, Dismemberment R Us. That is what abortion involves, all thoroughly sustained by the Constitution, in the eyes of Judge Kopf, and all apparently beyond the reproach, except from Catholic judges appointed by a Republican president.

Arkes is referring to and partially quoting from an earlier post of mine entitled Remembering Alexander Bickel’s passive virtues and the Hobby Lobby cases.  In the part of the post that Arkes summarizes inaccurately, I made a point about judicial decisions, appearances and the public’s acceptance of the law. This is what I wrote:

In the Hobby Lobby cases, five male Justices of the Supreme Court, who are all members of the Catholic faith and who each were appointed by a President who hailed from the Republican party, decided that a huge corporation, with thousands of employees and gargantuan revenues, was a “person” entitled to assert a religious objection to the Affordable Care Act’s contraception mandate because that corporation was “closely held” by family members. To the average person, the result looks stupid and smells worse.

To most people, the decision looks stupid ’cause corporations are not persons, all the legal mumbo jumbo notwithstanding. The decision looks misogynistic because the majority were all men. It looks partisan because all were appointed by a Republican. The decision looks religiously motivated because each member of the majority belongs to the Catholic church, and that religious organization is opposed to contraception. While “looks” don’t matter to the logic of the law (and I am not saying the Justices are actually motivated by such things), all of us know from experience that appearances matter to the public’s acceptance of the law.

(Emphasis added.)

It is a poor polemicist indeed who blatantly and consciously misrepresents another person’s views in an effort to score a cheap point. But, in truth, such conduct, while in poor taste, is probably only a venial sin. So, Hadley, say you’re sorry–it is the natural thing to do–and all will be forgiven.

RGK

*Being Catholics, my wife and five of her siblings would find such a suggestion amusing. Candor requires that I admit that a sixth sibling became an Episcopalian–she was always a wild child.

**I am mystified by the Professor’s attack on me in an article about the Red Mass.

Remembering Alexander Bickel’s passive virtues and the Hobby Lobby cases

In the Hobby Lobby cases, five male Justices of the Supreme Court, who are all members of the Catholic faith and who each were appointed by a President who hailed from the Republican party, decided that a huge corporation, with thousands of employees and gargantuan revenues, was a “person” entitled to assert a religious objection to the Affordable Care Act’s contraception mandate because that corporation was “closely held” by family members. To the average person, the result looks stupid and smells worse.

To most people, the decision looks stupid ’cause corporations are not persons, all the legal mumbo jumbo notwithstanding. The decision looks misogynistic because the majority were all men. It looks partisan because all were appointed by a Republican. The decision looks religiously motivated because each member of the majority belongs to the Catholic church, and that religious organization is opposed to contraception. While “looks” don’t matter to the logic of the law (and I am not saying the Justices are actually motivated by such things), all of us know from experience that appearances matter to the public’s acceptance of the law.*

The Hobby Lobby cases illustrate why the Court ought to care more about Alexander Bickel’spassive virtues“–that is, not deciding highly controversial cases (most of the time) if the Court can avoid the dispute.** What would have happened if the Supreme Court simply decided not to take the Hobby Lobby cases?  What harm would have befallen the nation? What harm would have befallen Hobby Lobby family members who would  have been free to express their religious beliefs as real persons? Had the Court sat on the sidelines, I don’t think any significant harm would have occurred. The most likely result is that one or more of the political branches of government would have worked something out. Or not. In any event, out of well over 300 million people, who would have cared if the law in different Circuits was different or the ACA’s contraception mandate was up in the air?

Next term is the time for the Supreme Court to go quiescent–this term and several past terms have proven that the Court is now causing more harm (division) to our democracy than good by deciding hot button cases that the Court has the power to avoid. As the kids say, it is time for the Court to stfu.***

*“Americans continue to take a dim view of the U.S. Supreme Court’s performance, perhaps in part because most still think the justices base their decisions on their own political agenda rather than the law.” Rasmusssen Reports, (Tuesday, June 24, 2014) (Only “26% Rate Supreme Court’s Performance Positively.”).

**Bickel was not trying to protect the Court itself. On the contrary, he realized that there were “hot button” cases that an anti-democratic Court would of necessity be required to resolve. It was for those rare “fate of the nation” cases, where the Court’s legitimacy mattered most to public acceptance of a really important decision, that required the Court to conserve this very scare resource.

***Thanks to June Edwards, one of the smartest lawyers I know, for stimulating this post last evening (July 4, 2014) as we sat on her pleasant patio overlooking a fire works display that illuminated the entire City of Omaha from our perch in the western hills. By the way, Charlie, the dog, was fine because Joan must have fed him 3 or 4 burgers plus all manner of other treats.

Isn’t the loosey-goosey “closely held” distinction in the Hobby Lobby cases intellectually incoherent?

According to CNBC in an article published on May 15, 2014,  Warren Buffett is the “CEO and primary shareholder of Berkshire Hathaway . . . .” For example, as of July 1, 2010, Buffett owned 32.4% of the aggregate voting power of Berkshire’s shares outstanding and 23.3% of the economic value of those shares. See Warren Buffett’s 2010 SEC Schedule 13D/A Filing.

If Mr. Buffett has effective control of Berkshire Hathaway, shouldn’t Berkshire Hathaway be considered “closely held” for purposes of the Supreme Court’s Hobby Lobby cases and the Religious Freedom Restoration Act of 1993 (RFRA), even though Berkshire Hathaway stock is widely and publicly traded? Compare Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ____, slip op. at pp. 29-31 (June 30, 2014) (“For all these reasons, we hold that a federal regulation’s restriction on the activities of a for-profit closely held corporation must comply with RFRA.”) (emphasis added by Kopf).

What is the meaning of “closely held” and where in RFRA is such a distinction found? Why should it matter whether a corporation is “closely held,” whatever those words might otherwise mean, if the board of directors or CEO sincerely express a religious objection on behalf of the corporation to the contraception mandate found in the regulations of the Patient Protection and Affordable Care Act of 2010 (ACA)?

RGK

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