Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, September 24, 2014

Understanding Hobby Lobby in 2064?

In reading through Josh Blackman's criticisms of Justice Ginsburg's forthcoming Elle interview, one of Justice Ginsburg's answers stood out to me:

Interviewer: Fifty years from now, which decisions in your tenure do you think will be the most significant?

J. Ginsburg: Well, I think 50 years from now, people will not be able to understand Hobby Lobby. 

Justice Ginsburg's response not only fails to answer the question asked, but also advances an insupportable claim about the comprehensibility of a recent opinion of the Court. Are there any Supreme Court decisions from fifty years ago (which is just 1964) that people today cannot understand? What is it that Justice Ginsburg thinks future interpreters will find so hard to comprehend about Hobby Lobby

In terms of comprehensibility to future interpreters, I tend to think that Justice Alito's more formalist opinion for the Court will be more understandable than Justice Ginsburg's purposivist dissent. Understanding the majority opinion requires less contextual knowledge of the sort that may fade with the passing of time. Someone trying to figure out how the majority and the dissent arrived at their respective conclusions about the scope of RFRA's coverage can more readily understand the largely textualist analysis of the majority opinion than the dissent's importation into RFRA of a judicially developed formula designed to implement a religious organization exemption for a different statute.   

Perhaps future interpreters will disagree with the outcome in Hobby Lobby; hard to say with any confidence whether disagreement will be greater or lesser than it already is. But it should not be difficult for future interpreters to understand how the Court arrived at its decision. 


Walsh, Kevin | Permalink