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Milwaukee's Daily Magazine for Thursday, July 31, 2014

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In Living Commentary

The court as it is now has managed to anger people on the left and the right. (PHOTO: shutterstock.com )

Supreme Court is trolling America


Trolling, for those of you who might be new to the internet, is the act of saying deliberately stupid or inflammatory things merely to provoke a reaction. This can happen in comments sections, on Facebook, via Twitter. And now, apparently, via U.S. Supreme Court decisions.

The Supreme Court is, pretty often, going to make decisions any of us can disagree with. The court as it is now has managed to anger people on the left and the right -- the left more often, thank you Ralph Nader -- but last week's decisions on birth control have raised the Roberts court's penchant for disagreeability to a new level, one that is undeniably trolling.

It starts this way: On Monday last week, the court issued its Hobby Lobby case ruling (pdf), a ruling that everyone -- including Justice Samuel Alito himself, as the author of the majority opinion -- considers very narrowly tailored. It was not the rousing victory conservative Christians wanted, but it was a defeat for those in favor of both the Affordable Care Act and the idea that women ought to be able to make their own medical decisions.

Alito wrote that his ruling applied only to "closely-held" private companies and covered only four of the 20 kinds of reproductive health measures the ACA mandated. "[O]ur holding is very specific," Alito wrote, implying that fears about this decision spreading beyond four types of birth control or beyond closely-held companies (Justice Ruth Bader Ginsburg in her dissent called the ruling a "decision of startling breadth") were unfounded.

Most of the court's trolling came in decisions released later in the week, but Alito got the troll rolling with that original Hobby Lobby decision. In a sentence that just flat blows my mind, he wrote, "The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients."

This is, basically, a poke in the eye to anyone who believes in science, the scientific method, objective truth, reality, anything like that. Fact is, the four contraceptives at issue in the are not abortifacients -- meaning they do not cause abortions -- and the court knew that, but chose to abandon science in favor of "sincere religious beliefs." Alito said, in other words, belief is always going to trump science in the Roberts court. Bad news for rational people, good news for, say, the Time Cube guy.

But just 24 hours later, the court amped up the trolling. In decisions released Tuesday, the court expanded the holding to not just four but all 20 items for which coverage was mandated. In her blistering dissent, Justice Ruth Bader Ginsburg predicted that Alito's "very specific" ruling was really a wide-open floodgate. Alito all but called her a paranoid maniac in his ruling, but it turns out she was right. Undoubtedly, she knew the Tuesday rulings were coming.

And she also knew what would drop on Thursday last week--the Wheaton College ruling.

I want to digress here to remind everyone that both Hobby Lobby's and Wheaton College's insurance plans covered the contraception methods that they objected to in court right up until the mandate kicked in. Undoubtedly, many other for- or not-for-profit organizations currently claiming that offering contraceptive coverage violates their religious freedom have also offered that same coverage before "Obamacare" made them do it. Thanks, Obama!

Wheaton College did not challenge their obligation to provide contraception coverage, because, as they are a non-profit religious outfit, they are not required to provide the coverage at all. Rather, they were to file a form with their insurance carrier certifying that they objected to providing the coverage. At that point, the insurance company would step in and offer the coverage free of charge. This procedure was put in place to make it possible for women working for non-profits that object to providing the coverage to still get the coverage required by the ACA.

Justice Anthony Kennedy, the swing vote in this case (and so many others!), wrote a concurring opinion in the Hobby Lobby case just to show that he's not totally on Alito's team. He praised the living daylights out of that procedure: "As the Court's opinion explains, the record in these cases shows that there is an existing, recognized, workable, and already-implemented framework to provide coverage. That framework is one that HHS has itself devised, that the plaintiffs have not criticized with a specific objection."

In other words, both Kennedy (and Alito, who said "it does not impinge on the plaintiffs' religious belief ... and it serves HHS's stated interests equally well") really dig that compromise procedure. The organization gets to have a clean conscience, the employees get their coverage, the government gets its mandate met. Win-win-win.

But in the Wheaton College case, the court said the school did not even have to file its form.

This is professional-level trolling. After saying, "Hey, this is the world's tiniest, narrowest, most very specific ruling," the court turned around and blew it up. Seriously: every restriction and protection Alito promised-pretty-please would be in there has been blown up. Except one -- as of now, only women's health is in jeopardy under these rulings, although as Ginsburg warned would happen, suits have already been filed claiming that things like employing LGBT people violates their religious freedom. It's only a matter of time, with this court, until the floodgates really are open.

So well played, SCOTUS. You have just trolled us all good.

Talkbacks

Scotty1979 | July 9, 2014 at 9:53 a.m. (report)

"Trolling, for those of you who might be new to the internet, is the act of saying deliberately stupid or inflammatory things merely to provoke a reaction" You mean like your articles?

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