33 Pages Posted: 18 Jul 2019
Date Written: January 29, 2019
My paper will discuss the Supreme Court’s creation of new rights, which I call the rights of the Right, and who wins and who loses by their decisions. My article seeks to give on an overview, not a detailed or exhaustive analysis of the Court’s individual cases. Looking at who is helped and who is hurt leads to interesting insights, if not conclusions. The Court decides each case on its own terms, not reconciling its holdings. Citizens United endowed corporations with rights of free speech and Hobby Lobby granted religious rights to for-profit corporations. Citizens United, however, limited the power of Congress to ensure a level playing field in political campaigns. The Court’s decisions often interfere with third parties’ rights or benefits. Hobby Lobby protected the religious rights of the owners of their corporation, but made it more difficult for the employees to obtain medical contraceptives. In Sibelius, Chief Justice John Roberts ruled the Affordable Care Act’s system of Medicare expansion to be unconstitutional because it did not give states a meaningful choice, thereby freeing the states to opt out of the expansion while enabling the denial of expanded Medicare coverage. In Shelby County, Justice Roberts partially invalidated the Voting Rights Acts by applying equal protection to the states, “Each state is entitled to equal respect and dignity.” This state right to equality justified limiting the protections of the Voting Right Act for voters in those states. Trinity Lutheran Church limited the power of states not to fund religious institutions. NFIB held that the Commerce Clause does not enable Congress to require health insurance coverage. Masterpiece Cakeshop indicated that a baker has rights of free speech and free exercise of religion not to provide a cake to a gay wedding but also dismissed any rights of gays to equal treatment. Janus, where the plaintiff challenged mandatory contributions for union representation, created a right of non-association.
In this Article, I will discuss several recent Supreme Court cases that have created new rights, including Columbia v. Heller, Burwell v. Hobby Lobby Stores, Inc., and Citizens United v. Fed. Elec. Com’n, National Federation of Independent Business v. Sibelius, McCutcheon v. Fed. Election Committee Commission Town of Greece v. Galloway, and McCullen.
The Court has shifted from protecting powerless minorities to protecting powerful minorities, the religious (except for Muslims), and those free souls who wish to live free of regulation and legal process. The latter category is given freedom to scam -- those who do not want to contribute to unions which bargain for them, who wish to rely on emergency care rather than buy health insurance, abortion counseling centers that don’t want to reveal their not being licensed, exploiters of consumer’s, and employers and sellers who insist on arbitration agreements. Congress is among the losers. The Court has limited its power under the Commerce Clause in NFIB, under the Voting Rights Act in Shelby, and under the Bipartisan Campaign Reform Act in Citizens United. States are given freedom to come up with new ways to disqualify voters, to gerrymander. States are to be treated with equal dignity, but are not allowed to have their own policies on funding religions, regulating abortion counseling centers, or arbitration. Corporations and their owners can fund political activity and not fund contraceptives. It is a zero-sum game; the losers are those without the resources to fund political campaigns, who do not own corporations but work for them, Muslims, the non-religious who do not wish to fund places of worship, those want to protected by the civil rights laws against religious organizations, gays who want wedding cakes, the uninformed who need information, employees and consumers who want the protection of the courts, and members of public unions. Voters who are minorities or whose votes have been diluted by gerrymandering also may lose their voting rights.
Keywords: Voting Rights, Religion, Gay Rights, State Rights, Commerce Clause, Spending Clause, Arbitration, Title VII, Presidential Powers, gun Rights, Free Speech, Regulation
JEL Classification: I13, J48, J51, J52, J71, Z12, Z18
Suggested Citation: Suggested Citation