The American left’s reaction to the Hobby Lobby case ruling is a little strange. It is not strange that they are disappointed. Their side lost, so it is understandable that they would be unhappy about that. It is strange, however, that they are so angry about it, and so ready to accuse the Court majority of behaving politically.
The ruling is based on the Religious Freedom Restoration Act. That law was designed on purpose–and in part by leading liberals of the time–to make the government carry the burden of justification when its regulations impose on people’s religious practices. The law, in other words, was written to make it hard for the government to prevail in a suit like this. Given that baseline, why should anybody be shocked that a majority of the Court found in favor of the people challenging the regulation. In this light, you could as easily suspect the dissenting minority of behaving in a politicized fashion.
More sophisticated critics from the left have noted that the majority opinion seems to lack any clear principles, and that this makes it seem more like a political or policy judgment than a legal one. After all, the Court said that the ruling only applies to closely held companies, and that it only applies to contraceptives, and not necessarily to other forms of “health care” that the government might mandate. How, these critics ask, do you get genuine principles to justify such distinctions?
They have a point. But they are also being highly selective in their criticism. Huge swaths of the Court’s contemporary jurisprudence–in relation to civil rights, in relation to capital punishment, and in many more areas–depend on the Court’s making such judgments about particulars–and in a way that seems very unrelated to legal principles compelling a particular outcome by the force of their logic. This kind of thing goes on all the time now, and liberals have in many cases cheered the outcomes it has produced. The phenomenon is in fact troubling, but a real response to it calls for rethinking the modern approach to judicial review. And this would require that both the left and the right get used to asking the Court to do less rather than more for them. But this aim is not advanced by either side complaining about such things when it loses and only when it loses.
Also, the critics might want to consult the text of the relevant passages of the Religious Freedom Restoration Act (which are quoted here, at the beginning of the Court’s opinion). If they do they will see that the law practically forces on the Court the kind of judgments that some have deplored. It says that when government policy imposes a “substantial burden” on a person’s exercise of his religion the government must show that the policy advances a compelling government interest by the least restrictive means possible. All three of the key concepts–”substantial burden,” “compelling governmental interest,” and “least restrictive means”–are highly vague and subject to endless manipulation. It is no surprise if a Court that uses them sets forth lines of reasoning that look unprincipled.