Near the start of her dissent in Burwell v. Hobby Lobby, Justice Ruth Bader Ginsburg traced the reasoning behind the Women’s Health Amendment to the Affordable Care Act: “Women paid significantly more than men for preventative care, the amendment’s proponents noted; in fact, cost barriers operated to block many women from obtaining needed care at all.” To address this inequity, the amendment introduced a contraception mandate to the law’s health insurance requirements. On Monday, the court ruled that mandate was an unlawful infringement on closely-held corporations’ religious liberties.
The majority opinion and the Ginsburg dissent highlight the stark divisions between the court’s conservative majority and its liberal minority. Emily Badger at the Washington Post noted that the majority opinion, which ran 49 pages, mentioned women 13 times. Ginsberg’s dissent, though only 35 pages long, mentioned women 43 times. “An opinion on this case, in short, looks very different when it's written by a woman,” Badger concluded. But Ginsburg did not just foreground women qua women, but also women qua people, the very thing missing from the majority opinion.
In fact, it’s the thing missing from much of the business-centered jurisprudence of the Roberts court. Corporations may be people, but they are not “the people.” And it’s “the people” – living, breathing, nonfictional people – who the conservative justices continuously overlook.
Since the court’s conservative majority coalesced under Chief Justice John Roberts, it has repeatedly ruled in favor of business interests. The Constitutional Accountability Center, a progressive think-tank, has tracked the percentage of business-friendly rulings from the Supreme Court since the late Berger Court of 1981-1989. (“Business-friendly” is measured in terms of support for the Chamber of Commerce’s position in cases, an imperfect but useful shorthand.) The court grew more business-friendly over the 1990s; the Rehnquist court sided with the Chamber 56 percent of the time versus the Berger court’s 43 percent. But Rehnquist’s business-friendly turn pales in comparison with Roberts court, which has sided with the Chamber 70 percent of the time.
Those numbers tell part of the story, but not all of it. It’s not just that the Roberts court is business-friendly, but rather that it favors the rights and interests of fictive people over real people. Citizens United made this clear. When it came to corporate rights, Citizens United went much further than Hobby Lobby. In Citizens United, the majority held that corporations had First Amendment rights when it came to political donations. The court did not go quite so far in Hobby Lobby, limiting itself to the statutory protections of the Religious Freedom Restoration Act and avoiding First Amendment questions for now.
But when it comes to pitting corporations against people, Hobby Lobby goes much further. Corporations gained ground over ordinary people in Citizens United, because if money is protected speech, corporations by their very nature have a lot more protected speech than the average American. But the effect of Citizens United on ordinary people, while not insignificant, was indirect. In Hobby Lobby, however, the interests of corporations were set directly against the interests of actual people – corporate religious liberties versus individual health care choice – and the court found in favor of corporations.
To make that finding, the conservative justices had to change the court’s approach to religious liberty. For the past 50 years, the Supreme Court has applied a religious liberty test much different than the one the court used in Hobby Lobby. As ThinkProgress' Ian Millhiser documents in his survey of Supreme Court case law on religious liberty, since 1963 the court has routinely found that “religious people enjoy a robust right to practice their own faith and to act according to the dictates of their own conscience, but they could not wield religious liberty claims as a sword to cut away the legal rights of others.” That balance between the claims of religious people and the rights of third-parties was upended in the Hobby Lobby case, and it was upended not on behalf of religious people but for-profit corporations helmed by religious people.
What’s so striking about the rise of this business-centered jurisprudence is how ill-suited it is to present-day America. The court’s conservatives, if their rulings are any guide, believe corporations have too little political influence and are burdened by too much government regulation. It should be a tough sell in a post-financial collapse society, but that has done little to rein in the court’s conservatives.
Meanwhile, for those unhappy with the court’s current direction, Ginsburg’s dissent is cause for both celebration and despair. Her people-centered jurisprudence offers a model for the court’s liberal justices for years to come. But with Ginsburg turning 81, and Roberts not yet 60, it will likely be a long time before a justice who shares her vision leads the court’s majority faction.