The Supreme Court’s Disappearing Public

In the face of the general disaster of the Republican majority on the Supreme Court’s ongoing power grab in the student loan case, I worry that the damage of the LGBTQ Wedding Website decision, Creative LLC v. Elenis, will get overlooked.  It seems to me, based mainly on a reading of Justice Sotomayor’s dissent, that the real forerunner of Creative LLC is a case mentioned nowhere in the decision or dissent: Burwell v. Hobby Lobby (2014).  Recall that in Burwell, the Court ruled that the Hobby Lobby Corporation could not be compelled by the Affordable Care Act to provide contraceptive coverage as part of its employees’ healthcare coverage, on account of the corporation’s religious beliefs.  At the time, I noted that Hobby Lobby seemed very happy to avail itself of things like police and fire protection.  I don’t usually quote myself in blog posts, but here’s what I said at the time:

“Hobby Lobby is a large, big-box retail chain that employs over 13,000 people.  If those people (or others like them) didn’t exist or refused to work for Hobby Lobby, the corporation would go out of business immediately and the owners would have to find something else to do.  Hobby Lobby, Inc. takes advantage of the publicly-provided roads that its employees, managers, and customers take to get to its stores and that its owners use to get to their corporate offices.  Those offices were erected with the protection of enforceable building codes that make sure they don’t fall down, and that try to make sure that everyone can evacuate them in the event of a fire.  Hobby Lobby, Inc. also takes advantage of municipally provided services, including the installation of stormwater systems that deal with the massive runoff caused by big-box stores’ parking lots.  Hobby Lobby, Inc. also takes advantage of local police and fire services that protect their investment in their stores.  All of these things are provided substantially by property taxes paid by everyone living in the municipalities where the owners exercise their freedom to open a store.  Hobby Lobby, Inc. also freely avails itself of services provided by state and federal taxes, such as the Interstate highways on which it can transport its goods (highways which have to be widened at great public expense when suburbanization creates new local markets for its stores).  Hobby Lobby, Inc. also has no moral objections to taking advantage of the national defense system that keeps its stores safe from foreign intervention, or the publicly funded legal system that allowed them to challenge the ACA and that enables them to recover money from those who owe them.  No, in general, it seems that Hobby Lobby, Inc. depends quite a lot on the society in which it does business, even as its owners seek to excuse themselves from its rules.  In the meantime, Hobby Lobby’s owners also take advantage of the legal structure governing corporations (Hobby Lobby, Inc. isn’t a sole proprietorship!), such as the fact that they aren’t personally liable for any bad things that their corporation might do.  In other words, Hobby Lobby’s owners get to identify with the corporation when it’s a matter of religious belief, but not when doing so is inconvenient.”

It was this line of thought that I most remembered when reading Justice Sotomayor’s dissent in Creative LLC.  She notes that: