Super Lawyers
William C. Altreuter

Thursday, March 24, 2016

Back in law school we had a professor who was one of those intellectual high wire performers that dazzle you with their brilliance. This particular cat was also, I think, one of the more arrogant academics I have encountered, and it was this quality that ultimately brought him down. I recently ran across what appears to be an old website of his, which features a lengthy monograph on the concept of judicial balancing, in which it appears that he is arguing that the process of weighing interests that courts purport to engage in is actually a sort of elaborate fiction that is employed in order to rationalize outcomes. That may be true, but it seems to me that there is a larger question that is presented when courts engage in this process, and I have been thinking about this in the context of what I have been reading about Zubik v. Burwell. The chief concern seems to be that this four-four Supreme Court will split along ideological lines because that's just how it works: there are no real jurisprudential principles in constitutional law, and the arguments and opinions that the lawyers make and the justices write are chiefly pretextual rest stops along the way to an outcome that is determined by the ideological beliefs of the panel.

On those (fairly rare) occasions when this observation might be true the reasoning employed is generally so nakedly lame that it is apparent to even lay readers. Bush v. Gore remains the best example-- and certainly the writings of the mercifully deceased Justice Scalia did little to dispel this belief. As a general rule, however, even through the Supreme Court is a policy making body, it is usually constrained by common law principles, and by the fundamental federal jurisprudencial concept that its powers extend only to deciding “cases and controversies”. What this means is that in instances, like this, where the petitioners seek to secure a statutory interpretation that invalidates a law on constitutional grounds the facts of the case should be very carefully vetted. What we have here are a group of Catholic nuns who are asserting that ACA requirement is a near occasion of sin. Since it is essentially a given that any religious belief is a “sincerely held” religious belief that avenue is closed. This then leaves the question of whether the statute imposes a substantial burden on the nuns' religious beliefs, and that means that a panel that consists of four Catholics is now in the business of weighing souls. The smart play would be to to stay as far away from the question of what constitutes “substantial” as possible, since that would put the Court in the position of evaluating what elements of a particular religious faith are the most central to that faith. I think Roberts is clever enough to realize this, and I think he will steer away from screwing around with a statute that he has already written to uphold. I agree that this is a political question, but the political issue is the public’s acceptance of the validity of the Court’s holding. That’s a credibility issue, and credibility is a coin that Roberts has learned to spend frugally. This is not a case where political ideology will affect the Chief’s vote– he is, I suspect, mindful that the legitimacy of the Court has to be given priority over the hand wringing of some paperwork-adverse nuns.

Also, am I the only one that thought that the Little Sisters of the Poor were made up by some football coach?

| Comments:
I haven't read anything about the arguments, but insofar as the nuns aren't required to administer abortions, authorise them with the physicians, or otherwise have any direct involvement, I can't see any "substantial burden" on them or their beliefs. I'm sure the nuns who founded and are still involved with my current employer wouldn't simply pray for the souls of those who come to the hospital for an abortion and leave it at that, and that's where these nuns should consider drawing their line.

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