1 July 2014

First time in my life!!!

First time in my life I read a full Supreme Court judgement. In its entirety! All 95 pages!! Twice!!

There were enough emotions being poured out in Facebook among my friends about the recent Supreme Court and the Hobby Lobby case (ACA, access to contraception by women etc) – mostly against the Supreme Court decision – and a lot of them by women – that I had to ask myself – “What kind of insensitive men are running our Court these days?”. Just to get a first hand impression, I downloaded the whole judgment and started reading up in the long coast to coast flight.

First, I read Justice Alito’s writeup of Opinion of the Court (making a case for the final decision of the Court). Impressive arguments. It made total sense to me. Followed up with Justice Kennedy’s Concurrence.

I was not sure there was a case against. So, then read up Justice Ginsburg’s writeup “Dissent”. Splendid arguments. Great alternate ways to look at the same situation. That made total sense to me too. Justice Breyer and Justice Kagan’s Dissents were one paragraph only – mostly concurring with Justice Ginsburg.

So, I was even more confused then. I asked myself “Which way would I vote”? Not knowing anything better, I went ahead and read up the whole 95 pages again.

And this is the conclusion I came to… I am really really glad that some really really smart people investigate these really really intricate and controversial questions in so many different ways and then lay down the rule of the land. I am certainly not up to it. That, above all, was the most comforting feeling I had.

And the decorum they have of laying down their bitter opposition while simultaneously showing great respect to folks with opposite points of view is something I can always learn from.

BTW, some of the facts I learnt while reading – that I never learnt from any of the FB posts:

1. The case was not about all contraceptives. In fact, ACA, does not even cover the more effective forms of contraceptives. Only the 20 specified ones by FDA. Of them, 16 was never in question – they all prevented fertilization of eggs. The debated and contested ones were 4 of them – that prevented a fertilized egg to continue growing by attaching itself to the uterus. (I think certain religious beliefs believe life starts when the egg gets fertilized).

2. The case was not about whether women can have access to those 4. It was about if certain kind of for-profit organizations could be forced to pay for them when their religious beliefs is that it is a sin to do so. In case of religious non-profits, the law today already requires that the insurance carrier will have to pay for those 4 drugs without asking the non-profit or the employee to pay. And no insurance carrier has ever objected because the costs of going thru with an unwanted pregnancy is apparently much higher than the cost of those 4 drugs.

Both sides agree to the above.

In any case, I am not sure I will ever use any of these information. But sure taught me that I should get to the facts before I evaluate…

Posted July 1, 2014 by Rajib Roy in category "Musings


  1. By Vicky Ruffin Cupit on

    In the Sherman Democrat this morning was the worry expressed by some of the Court Judges, politicans, and others that this would set a presidence for companies to not provide insurance, minimum wages, equal pay for women or other benefits based on their religion… think maybe people will get what they wished for without reasoning out the outcome over a decade or so… companies have a bottom line to protect and if doing away with the current laws of society and of America in general… then they are satisfying their investors, stockholders, and their pocketbooks…. then what?

  2. By Rajib Roy on

    Vicky , And those were some of the exact words in Justice Ginsburg’s powerful case Against. She actually went to push the thinking to a few more very intriguing examples – e.g. Blood transfusion. Justice Alito, is his case For responded to some of her thought provoking questions and explained how parts of the laws (not ACA but RFRA) being debated will explicitly not allow the cases Justice Ginsburg talked about. My point is that very smart people are evaluating a lot of these things – certainly much smarter than journalists and opinion-mon getting blogs.

  3. By Jenny Hust Nash on

    Whether or not life begins at conception is not a religious opinion. A fertilized egg is human life scientifically speaking. It is not a possible life. It’s both human and living. Whether or not that life should have rights is the part up for debate.

  4. By Vicky Ruffin Cupit on

    It’s funny how the insurance companies recognize how expensive childbirth is and how expensive it is to raise a child but some people think that procreation is a woman’s purpose on earth and that she and her offspring should welcome being poor, underfed, uneducated, etc. and also shoulder the blame of the “right” for being that way….

  5. By Vijay Ramchandran on

    I agree it is good to have smart people (who don’t have to worry about things like winning primary elections) evaluate these matters. But it’s also startling how many verdicts are predictably along ideological lines with the Scalia and Ginsberg camps almost always on opposite sides. Sure, they make far more intelligent arguments than most of us can, but what difference does a well written dissent ultimately make?

  6. By Rajib Roy on

    Vijay, I googled to understand how many of the verdicts are split and it is always one set versus the other set. What I found is that in the last two weeks when SC has dispensed with a lot of cases, out of 16 cases, 12 have been unanimous. Not that I personally believe judgments should be necessarily unanimous. There are many countries where “unanimous” judgments are handed down – not because the justices thought it thru. It is precisely for the opposite reason. I think 5-4 can signify that there is healthy debate.

    Also, we probably have to think if there is a better system than this, while this may not be perfect.

    Finally – and this is an opinion – well written dissents allow, in future, people to realize what were the various issues weighed upon. That influences future judgments. In fact, this case alone refers to a lot of past judgments and the for and against arguments that had been thought thru before.

  7. By Rajib Roy on

    Jenny! I think I understand the larger argument you are making. But not sure I agree “Whether or not that life should have rights is the part up for debate”. Are you talking about the general social debate on this issue or this particular case? This particular case actually does not delve into whether one should be allowed to take any of the 4 pills that does not let the fertilized egg to attach to the uterus to grow. It merely deals with whether certain kind of organizations could be forced to pay for those pills for their employees.

    If you are talking about the general social debate, I understand (I think) your viewpoint.

  8. By Ram Narayanan on

    SCOTUS decisions- always interesting, politics aside. You’ll probably like the book ‘Reflections on judging’ by Judge Richard Posner on your next long flights. Candid and down-to-earth reflections of what goes on- glimpses into the workings of the judiciary at all levels (focus primarily on the federal appellate courts and SCoTUS). Posner and Gary Becker co-wrote thoughftul points-of-view in the becker-posner blog (until Prof Becker passed away recently).

  9. By Jenny Hust Nash on

    I was just addressing the point in #1 that certain religious groups think life begins at conception. I’ve only heard the description of “potential life” related to humans. In every other organism, you have life or you don’t. I think the reason behind that is the larger debate of personhood and when one is assigned rights. To that end, I’ve yet to hear a reasonable argument as to when exactly it should occur. Even hugely pro-choice Obama says it’s above his pay grade…

  10. By Rich Huffman on

    Having the insurance foot the costs for birth control is a clever way around the question of forcing the company to pay. All the insurance companies do is bury that cost across all premiums. Don’t think for a minute we all are not paying for it. Those religious businesses are still paying for it as a buried part of their insurance premiums.

    My offense to all of this is govt mandating we must BUY or SELL anything. Forget the birth control aspect in all of this. Being forced to cover Viagra is nonsense too.

    To an even more fundamental issue, when did health insurance cease to be “insurance”? Now we get insurance to cover routine doctor visits and lifestyle choices. Birth control and Viagra are lifestyle choices in my opinion. Why is that even in an insurance plan?

    When I get home owners insurance, it doesn’t pay for my home maintenance. When I buy auto insurance, I don’t get free or discounted oil changes and tune ups included.

    We need to stop the scope creep here. Insurance should be used for large cost, unplanned situations – not routine maintenance. No wonder our health insurance costs have skyrocketed!

  11. By Chanda Parbhoo on

    I feel like its going to open Pandoras Box – We are a diverse nation of so many religions. Do we need to check our employers religious beliefs before we apply for a job?The problem was created with Citizens United “For all the years of jokes about corporations being people, the United States has never actually seen corporations as being capable of exercising their own personal faith” -RG. Corporations and religions are two very different roles. Does anyone know if HL paid for birth control in the history of their existence. Or is this just a creepy political ploy.

  12. By Rich Huffman on

    It is only opening Pandora’s box because of govt coercion in the first place. We seem to forget why or how we got here. When you have govt dictating so much detailed stuff like this, thinking one size fits all, you get micromanagement and ultimately the minority is run over.

  13. By Dhananjay Nene on

    As far as possible I always read court judgements when they are the center of a heated debate. It is surprising how many nuances are lost, facts ignored and points are incorrectly summarised by participants or the media.

    One of the interesting angles here is to understand in a secular (US connotation of that word) environment at what threshold can courts uphold religious positions that are at odds with established laws.

  14. By Manish Bhatia on

    If it is smart people making honest analysis of the facts, why is it always 5-4 in all these judgments? And the same 5 vs the same 4?

  15. By Shari Campbell Lotz on

    I have one question – why can’t we put this much attention on education, safety for all? We seem to focus on fringe issues and ignore the crumbling foundation.

  16. By Shawn Holtzclaw on

    Unfortunately I have read too many full Supreme Court cases in my prior life as a lawyer and in law school. At my more “advanced age”, I prefer to step back and look at these opinions in the broader context of the balance of power set out in our founding documents and see how, over time, the executive, legislative and judicial branches operate.

    As an example, the words in the opinions can be critically important at times, and not so at times. For example, when the Supreme Court decided to enter the abortion debate to begin with when it created out of thin air a “penumbra” “emanating from” the bill of rights to justify something that clearly didn’t exist, they decided to decide an issue that the country and the people – through their legislative bodies – had not reached an agreement on.

    Was that a good thing? Is the country better off now because 9 justices took a stance? Or would we be better off if we had allowed the federal and state legislative processes to work through the issue – even if messy – over time?

    The balance of power will ebb and flow.

    Our founders created an amazing, unique and brilliant form of government. It isn’t perfect; nothing that attempts to govern the collective will ever be.

    However, if we will allow our country to carry on without hating each other In the process it will work out better in the end.

  17. By Rich Huffman on

    Shawn, you hit the nail on the head! Let the legislature figure it out the law of the land and then let the courts say if it is constitutional. Courts making up laws out of thin air is not helpful to our civil discourse or our Constitution.


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