What Justice Requires

The Hobby Lobby SCOTUS case ruled that businesses and nonprofits who have religious objections to birth control are not required to provide the contraceptive care mandated by Obamacare. The White House came up with a work-around for that which requires that the business alert the government of their objection and thus allow the insurance companies to provide coverage. Yesterday the Supreme Court heard arguments from some of these establishments that doing so is still an infringement of their religious liberties in the case Zubik v Burwell.

Based on the questioning during oral arguments, Tierney Sneed observed that the conservatives on the court – all men – “clearly don’t understand how women get contraceptives.”

The challengers argue there other ways for female employees to receive the contraceptive care. Solicitor General Donald Verrilli, who was defending the accommodation, and some of the liberal justices countered that those alternatives ignored the original aims of the Affordable Care Act. But the conservatives on the court seemed to agree with the challengers and wondered, Why can’t all these female employees just go out and get a second insurance plan for their birth control?

“What type a burden does that impose? Is it because these exchanges are so unworkable, even with the help of a navigator, that a woman who wants to get free contraceptive coverage simply has to sign up for that on one of the exchanges?” Justice Samuel Alito asked, snarkily, about the Obamacare health insurance exchanges used by those without employer-based health care plans.

Verrilli pointed out that those sort of contraceptive-only policies don’t even exist on the exchanges, and in a hypothetical world where they did, that extra effort undercuts the reason Congress passed a mandate for preventive care in the first place.

As Kevin Drum notes:

This is really beyond comprehension. These justices have already heard two major cases on Obamacare, and they’ve presumably read the briefs for this one. But they still seem unable to grasp the concept that you can’t just go out to the exchange and buy a “contraceptive policy.” Nor do they seem to care that even if you could, it would mean not being able to get contraceptives from your regular doctor, which for some women would cause real problems with continuity of care.

The argument goes on from there and you can read Sneed’s account to see more. But it struck me that her point is very well taken. Alito is obviously clueless about how the real world of reproductive health care works for women. And yet he is someone who is tasked with deciding on laws that will govern that process.

It all reminds me of the three qualities President Obama outlined that he’d be looking for in a Supreme Court nominee. In addition to a sterling record and a deep respect for the judiciary’s role, he wrote this:

There will be cases in which a judge’s analysis necessarily will be shaped by his or her own perspective, ethics, and judgment. That’s why the third quality I seek in a judge is a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook. It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times. That, I believe, is an essential element for arriving at just decisions and fair outcomes.

This is where Chief Justice Robert’s comparison of a Supreme Court justice to a baseball referee who simply calls balls and strikes or the conservative idea of a “strict constitutionalist” fall short of an ability to reach justice in this branch of our government. To the extent that laws are interpreted based on an intellectual exercise rather than incorporating the daily reality of people’s lives, justice will not be served. That will be especially true when the arbiters don’t share the daily reality of people who appear before them. Differences based on gender, race and class will produce the most obvious injustices – as we see so clearly with Alito in the exchange above.

Based on my own personal experience with authoritarianism, I am aware of that worldview’s affection for the application of black and white rules and laws. But if that produced justice, we could simply develop a computer program that would take input and produce an output based on the law. There would be no need for human beings in the process (much less nine of them) to reach a conclusion. Real justice requires more than that.

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly.