Beware the Narrow

June 30, 2014
The Trap in the Supreme Court’s “Narrow” Decisions

Posted by Jeffrey Toobin


The Supreme Court concluded its term today with a pair of decisions widely described as “narrow”—that is, of limited application except to the parties in the lawsuits. Don’t believe it.



In fact, the Court’s decisions in Burwell v. Hobby Lobby and Harris v. Quinn conform to an established pattern for the Roberts Court. It’s generally a two-step process: in confronting a politically charged issue, the court first decides a case in a “narrow” way, but then uses that decision as a precedent to move in a more dramatic, conservative direction in a subsequent case.



Harris, about the rights of workers and their unions, provides a classic example of the process in action. The larger issue here concerns government workers who are covered by a union contract but don’t want to pay dues. Excusing these employees from contributing to union coffers would cripple the political and economic power of unions. This particular case concerned home-health-care workers in Illinois. By a vote of five-to-four, the five Republican appointees to the court allowed these workers—and only these workers—to avoid contributing to the union. But in his opinion Justice Samuel Alito, joined by Antonin Scalia, Anthony Kennedy, Clarence Thomas, and John Roberts, clearly indicates that the majority would have been willing extend its judgment to all government workers—and wound unions even more deeply.



The Hobby Lobby decision follows the same pattern. Again, Justice Alito’s opinion (for the same five-to-four majority) expressed its ruling in narrow terms. Alito asserted that the case concerned only a single “closely held” private company whose owners had religious objections to providing certain forms of birth control. According to the court, federal law required that those wishes be honored.



But, as Justice Ruth Bader Ginsburg pointed out in her dissent, there is almost no limitation on the logic of the majority’s view. Almost any closely held companies—which make up a substantial chunk of the American economy—can now claim a religious orientation, and they can now seek to excuse themselves from all sorts of obligations, including honoring certain anti-discrimination laws. And after today’s “narrow” rulings, those cases will come.



The template here is the court’s voting-rights jurisprudence. In the 2009 case of Northwest Austin Municipal Utility District Number One v. Holder, the court upheld a challenge to an application of Section 5 of the Voting Rights Act. Chief Justice Roberts’s decision was “narrow,” and it even drew the votes of the court’s more liberal members. Four years later, though, Roberts used the Northwest Austin precedent as a wedge to destroy both Section 4 and Section 5 of the Voting Rights Act, as well as much of its effectiveness, in the case of Shelby County, Alabama v. Holder. The liberals who signed on to the Northwest Austin decision howled that they’d been betrayed. But it was too late.



The liberals have seemingly learned their lesson. None signed on to today’s “narrow” majority opinions. They will not be surprised when the conservative quintet uses these decisions to rewrite the laws in profound ways. We shouldn’t be surprised, either.