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Thursday, March 27, 2014

The Remnant Goes to Court

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Supremes Hear Oral Arguments
Over Contraception Mandate


Washington, D.C.—For those who have never visited the U.S. Supreme Court during a trip to the District of Colombia, a very pleasant aesthetic surprise awaits you. Although there are other government buildings constructed during the decade of the 1930s, many of them in the older "Federal style" using classical architectural forms, the Supreme Court's outside and interior design clearly make it one of the most impressive, along with the original Library of Congress. 

Aside from the security precautions that now are pro forma upon entering government buildings, at the Supreme Court those measures go beyond many others. For example, there are two formidable barriers that prevent a terrorist from driving into the garage with explosives, as well as a peering into a car's undercarriage. That intense precaution also applies to the Court's mailroom, where any correspondence directed to the Justices is screened for ricin or any other poisonous material, and since 9/11, when Chief Justice travels overseas, he does so with a bodyguard. During the oral arguments, armed security guards with the noticeable wire in their ears, patrol the various public sectors within the Courtroom, often blocking a visitor's view of the Justices.

The outside façade of the building is constructed of a white marble found in Vermont & Alabama, and the interior of the court is a labyrinthine passage of corridors which leads to the offices of the Justices, the largest of which is, naturally, occupied by the Chief Justice John Roberts. Once beyond the milling about of people seeking entry to the Court to hear the oral arguments of the day, in the area that houses the Justice's chambers there is an almost monastic silence as one walks the passages behind wooden gates, all of which have security guards at entry and exit points.

While the outside construction used U.S. marble, the architect, Cass Gilbert, sought to use both Spanish and Italian marble for the interior of the building. For the twenty-four Doric columns that are part of the courtroom, Gilbert sought marble from a quarry in Italy and sent a letter in 1933 to the Italian Fascist leader, Benito Mussolini, who granted the request. The building was completed in 1935, and in a manner that is virtually unheard of today: it actually cost less than was originally projected.

But the heart of the building is the Courtroom, where the nine Justices – not Judges – of the U.S. Supreme Court sit in accordance with their seniority, and when the Courtroom is called to order, they will enter stepping forward one by one according to their seniority: Chief Justice John Roberts enters first, then Justice Scalia, the most senior Justice, and the last to enter will be Justice Elena Kagan, the most recently confirmed Justice. Prior to their entry there is the customary shaking of hands among them to signify that they are of one purpose: to interpret as best they can the Constitution of the U.S. Tradition has a long history at the Court.

The interior of the Courtroom will impress just about anyone: the space behind the nine seated Justices is framed by four Doric columns, and behind the marble columns is a large red curtain from the middle of which the Justices enter – and leave – to a hushed audience. Twenty more such columns establish the perimeter of the Courtroom. High above the Justices' bench and circling the Courtroom are marble friezes that identify the famous lawgivers of history, such as Hammurabi, Moses, and Justinian. 

Hanging behind the chair of the Chief Justice, is a large clock which informs spectators how long the arguments have been going on. Generally, during the October through June Term, the Justices hear two cases per day, beginning at 10 a.m., and ending at noon. One U.S. flag flanks the Justices' bench at each end.

The public sits in three sections behind the seats allocated to members of the Supreme Court Bar and participants in the legal question before the Justices that day. Notable figures such as Prof. Allan Dershowitz of the Harvard Law School, (former) Rep. Bart Stupak and current U.S. Senator Patty Murray, of the State of Washington, were present to hear this case.

At 10:01 on March 25, the Feast of the Annunciation, the Clerk of the Court banged his gavel and intoned, "Please Rise...." then..."God save this United States and this honorable court."

The oral arguments in the related cases of Sebelius v. Hobby Lobby, and Conestoga Wood Specialties v. Sebelius began before a completely packed Courtroom. That day The Washington Post showed photos of people who had slept overnight near the Court to be first to be admitted to hear this case.

I was also a spectator that day, and what follows is based on my observations of the oral arguments during the one and one-half hour legal battle in which the chief lawyer of the United States, the Solicitor-General, Donald Verrilli, Jr., squared off against his opponent, Paul Clement, who, ironically, had been Solicitor-General during the last Bush Administration.

What was before the Justice's consideration were two cases that returned to the same theme: can a law, in this case the Affordable Care Act, (ACA) aka Obamacare, require employers to provide medical insurance that includes contraceptives and abortifacients, be challenged under the First Amendment to the U.S. Constitution if the employer has a consistently shown religious belief that such action is immoral?

In the related case, Conestoga v. Sebelius, the Mennonite Hahn family sought exclusion from ACA on the grounds of their religious beliefs centered in the religious liberty clause of the First Amendment.

After a brief ceremony in which Chief Justice Roberts granted admission to the Supreme Court's Bar to applying attorneys, Paul Clement began his introductory remarks. In less than a minute, he was interrupted by Justice Sonia Sotomayor. This is not seen as discourteous, for during their presentations lawyers on both sides are peppered with questions interrupting their trains of thought, and are also clearly judged on how they respond to the posed legal questions or contrived scenarios presented by the Justices.

Shortly after Clement's response, Justice Kagan and then Justice Ginsburg, whose voice is hardly audible, raised the question of whether both families were applying for exemption under the Freedom Restoration Act of 1993 which provides that the government “shall not substantially burden a person’s exercise of religion,” but which also does not apply to for-profit enterprises such as the Hobby Shops and Conestoga Furniture Specialties. Ginsburg added that to those legislators who passed the law in 1993 it would have "seemed strange" to allow corporations to seek to exclude themselves from the legislation. This was to be the pattern of the three main interrogators during most of Clement's defense of his clients.

As a personal aside, the three female Justices questioning Clement were, in my experience, more aggressive than usual, seemingly an indication that future legal questions from this group will be directed toward their impact on women, and not on the entire body politic.

It is noteworthy that the representative of Planned Parenthood, Cecile Richards, in speaking to the gathered press after the conclusion of the arguments, called for "more female Justices." One could not mistake her intentions, and I expect to see more of this "jurisprudence" in the future. 

It can be stated that Solicitor-General Verrilli, Jr. also faced hostile questions from Chief Justice Roberts, and Justices Scalia and Alito, but theirs seemed tethered to law as opposed to a feminist perspective.  What these three Justices – Justice Thomas rarely asks a question – along with Justices Breyer and Kennedy were seeking to discover was whether the government's case was "a shell game." As one commentator, a Professor of Law at the U. Virginia, put it:

Whatever one thinks about the corporations, the individual plaintiffs are clearly exercising their religion. The government appears to believe that these individuals forfeited their religious-liberty rights with respect to the business when they incorporated the business, and therefore forfeited any right not to pay for emergency contraception and IUDs when the business grew to more than fifty employees.

These drugs and devices sometimes prevent a fertilized egg from implanting in the uterus. The plaintiffs therefore believe that they are being asked to pay for the killing of innocent human beings. One need not agree with that characterization to recognize its enormous moral weight.

Of course the question in everyone's mind who has an interest in the case is, "how will it be decided?"

Over a period of more than 15 years I have been present at many oral arguments before the Justices of the nation's highest court, and I would embark on a fool's errand to say that I know the answer. Last April, I was sure that the Court would rule in favor of Arizona in its dispute with the Obama Administration in dealing with illegal immigration, so sure that I predicted a "slam dunk" victory for the state.

 

With two or three possible exceptions during those arguments the questions by the Justices were directly aimed at the Obama Administration's advocate, and left no doubt of the Justice's intentions. Or so I thought. Not only did the Court rule 6-3 in Verrilli's favor, but even the Chief Justice, whose questions were arrows aimed at the heart of the Solicitor-General's case, did not vote as I thought he would.

 

What appears likely is that Justice Anthony Kennedy may very well be the "swing" or deciding vote in this case as he has been in many others. To conclude that from the tenor and tone of his questions the Chief Justice will support the claims of the Green and Hahn families may not be as certain as many seem to believe. 

 

What I will predict, however, is that if the Green and Hahn families are denied their cause, then our religious liberty will have suffered a telling blow. In more ways than one, the appropriate Latin aphorism holds here: de minimus non curat lex. The law does not deal in trifling matters.

 

 

Read 3783 times Last modified on Friday, March 28, 2014
Vincent Chiarello | Remnant Columnist

Born on the Day of St. Patrick in 1937 in Brooklyn, N.Y., he was a high school history teacher until 1970, when he entered the U.S. Foreign Service. His overseas assignments included U.S. embassies in Colombia, Guatemala, Spain, Norway and Italy; his last assignment was to the U.S. Embassy to The Holy See. He is married to Cynthia (nee Goldsmith) and has three children. They attend a Traditional Latin Mass in Northern Virginia.

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