Judge Richard George Kopf is a George H.W. Bush appointee to the federal bench and a blogger writing about “the role of judges and particularly the role of federal trial judges” and “what it means to be a federal trial judge on a day-to-day basis.” In a post on that blog this past Saturday entitled, “Remembering Alexander Bickel’s Passive Virtues and the Hobby Lobby Case” he noted that the Supreme Court would be well advised to “as the kids says [sic], it is time…to stfu.”
Like Bickel, Kopf is concerned that the Court is undermining its own credibility with the people by taking on too many hot button cases that should be resolved using the law rather than on a Constitutional basis, that is what was meant by “passive virtues.”
In the opening paragraph of his post, Kopf concisely lays out the reasons why so many are outraged over the decision in the case:
“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.”
Judge Kopf goes on to explain the reasons that the decision doesn’t pass the smell test for most people. He notes that it appears to be a partisan decision because all five of the Justices in the majority were appointed by Republican Presidents, it appears silly because it implies that corporations are people, misogynist because all five were men, and religiously motivated because all five are members of the Roman Catholic Church — and the church disapproves of birth control.
He admits that appearances do not really matter to the “logic of the law,” and says that he is not suggesting that any of the things he cited actually motivated any of the Justices. However, that does not change the perceptions of the public and “that appearances matter to the public’s acceptance of the law.”
It is this perception of an ideological decision, which ignores the Constitution what Bickel’s “passive virtues” admonition was about. He was not trying to protect the Court — he was interested in preserving the public’s faith in the Court for those times when the “fate of the nation” might depend on it. He was basically saying he wanted them to steer clear of hot button issues whenever possible.
Explaining why the Court should have refused to hear the case, Kopf writes:
“The Hobby Lobby cases illustrate why the Court ought to care more about Alexander Bickel’s “passive 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.”
Kopf concludes with his advice to the Court:
“Next term is the time for the Supreme Court to go quiescent — this term and several past terms has 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 says [sic], it is time for the Court to stfu.”
h/t: Think Progress