After the Supreme Court heard arguments in the legal challenge to contraceptive coverage under the Affordable Care Act (ACA), The Wall Street Journal's editorial board was quick to celebrate by pushing tired myths about the case and encouraging the judicial creation of new rights for corporations.
On March 25, the Supreme Court heard Sebelius v. Hobby Lobby, a case that could allow secular, for-profit corporate employers the ability to deny their employees preventive health insurance coverage based on their owners' religious objections. The owners of Hobby Lobby, the Green family, identify as conservative Christians who oppose some forms of birth control that they have decided -- in the face of scientific evidence to the contrary -- cause abortions.
Right-wing media have relished this opportunity to reject reproductive rights and come out in support of the Green family and Hobby Lobby. In their first editorial since oral arguments, the WSJ's editors were predictably pro-Hobby Lobby, calling the Obama administration's argument that a for-profit, secular corporation is incapable of religious belief "remarkable":
[T]he Administration's remarkable argument is that if a business is incorporated and for-profit, it forfeits normal constitutional rights. Hobby Lobby is a chain of craft stores that is a closely held, family-run corporation that tries to operate in accord with biblical principles.
Trying to distinguish between for-profit and nonprofit corporate forms for this regulatory purpose is constitutionally unprecedented. Corporations are often treated as "persons" for legal purposes, such as protecting free speech, and prosecutors can indict entire corporations for breaking laws. As Chief Justice John Roberts observed, minority-owned businesses can bring racial discrimination lawsuits. So why can't Christian- or Muslim-owned businesses exercise religion? Solicitor General Donald Verrilli had no good answer.
Liberal Justices rolled out a parade of dubious hypotheticals, arguing that if a business can invoke religion to refuse to pay for abortifacients, couldn't it also refuse to pay for blood transfusions or vaccinations? "Could an employer preclude the use of those items as well?" asked Justice Sonia Sotomayor in the day's first question.
Yet no one is "precluding" anything. Contraception is cheap, plentiful and covered by most health plans. Most corporations are run for profit, not piety. Mr. Verrilli claimed the mandate is necessary to promote public health and gender equality, but HHS could have aided those goals without forcing a minority of business owners with moral aims to implicate themselves in what they consider to be grave moral wrongs.
But the fact that "most health plans" cover contraception is precisely the point, just not in the way the WSJ thinks.
On the same day the Supreme Court heard oral arguments in Sebelius v. Hobby Lobby, a significant reproductive rights case under the Affordable Care Act (ACA), right-wing media continued to push discredited misinformation about a different ACA case that could do even more damage to health care reform.
On March 25, the D.C. Circuit Court of Appeals (finally fully-staffed) heard oral arguments in Halbig v. Sebelius. Unlike Hobby Lobby, Halbig has the potential to undermine the ACA as a whole by rendering the new federal health insurance marketplaces of the exchanges useless.
Since 2012, right-wing media have engaged in a loud campaign to push this challenge all the way to the conservative justices of the Supreme Court, even though legal experts agree this lawsuit is far-fetched and a distortion of the text, history, and purpose of the ACA. In the wake of yesterday's appellate arguments, conservative media is continuing to lecture Congress that legislators really meant to counter-intuitively destroy the ACA when they passed it, a bizarre argument that the editors of the National Review Online claimed "Democrats might have anticipated if they'd bothered reading the law." The Wall Street Journal took it as an opportunity to again accuse Obama of executive overreach, and invited the judiciary to "check on those abuses" and "vindicate the rule of law" by rewriting history to pretend Congress never intended tax credits in the federal exchanges.
A federal district court has already ruled against this unlikely argument, holding their "unpersuasive" legal theory about Congress' true intention contrary to common sense, because it would lead to "strange or absurd results."
Before the Supreme Court even heard oral arguments in the next big challenge to reproductive rights, National Review editor Rich Lowry was already misinforming about the facts of the case.
On March 25, the Supreme Court heard Sebelius v. Hobby Lobby, a case that could grant the owners of for-profit, secular corporations the ability to deny their employees preventive services in employer-sponsored health insurance, contrary to federal law. The owners of Hobby Lobby, the Green family, incorrectly believe that some forms of contraception are "abortifacients" (even though they aren't). So, the Greens argue, because their religious beliefs prohibit any support of abortion, they cannot comply with the Affordable Care Act (ACA) provision that requires American health insurance to cover preventive services, like birth control, at no cost.
Right-wing media has been all too happy to advance Hobby Lobby's arguments and ignore the scientific consensus disproving the corporate owners, framing the issue as evidence of President Obama's supposed hostility to religious freedom. National Review's Lowry, who is no stranger to misinforming about the contraceptive cases in front of the Supreme Court this term, was quick to join the pro-Hobby Lobby chorus.
In a recent post, Lowry portrayed the Greens as "law-abiding people running an arts-and-craft-chain," "minding their own business," until "Uncle Sam showed up to make an offer that the Greens couldn't refuse -- literally."
After the conservative justices gutted the Voting Rights Act in Shelby County v. Holder, right-wing media complained that criticisms of the legal challenge were overblown because other provisions of the VRA remain intact to fight voter suppression. But now some of those same right-wing media figures have begun to flip-flop on that position, arguing that another crucial component of the VRA is unconstitutional as well.
The Wall Street Journal doesn't understand how a federal anti-discrimination law that protects firefighters of color actually works, but that didn't stop one of its editorial board members from complaining about it.
On March 18, New York City Mayor Bill de Blasio announced that the city had settled a twelve-year lawsuit with a group of black firefighters who alleged that the entrance exams the department used resulted in impermissible racial discrimination that was unrelated to the skills necessary for the job. The group that filed the suit argued that the entrance exam had an unjustified disparate impact on black and Hispanic firefighters, a legal doctrine that has been codified in federal employment discrimination law and upheld repeatedly by the Supreme Court. In NYC, according to The Associated Press, the discriminatory effect occurred because "black firefighters have never made up more than 4 percent of the department's total," even though "more than half of residents identify with a racial minority group."
But the Wall Street Journal, whose editorial board is clearly no great fan of disparate impact litigation, was unimpressed by the numbers. In a recent post, the WSJ's Jason Riley argued that Mayor de Blasio's support of the settlement was misplaced since, despite the fact that the federal courts found the exams had an illegal disparate impact under Title VII of the Civil Rights Act, "the city might have won" the case. Riley proceeded to label the long-standing legal doctrine prohibiting the city's illegal disparate impact on firefighters of color as "nonsense" (emphasis added):
"I think the numbers speak for themselves," said New York Mayor Bill de Blasio in announcing that the city had settled a discrimination lawsuit against the fire department. The mayor was suggesting that the FDNY's written exam is biased because blacks and Hispanics pass it at lower rates than whites.
But the numbers don't speak for themselves. Intent matters. Racially disparate outcomes alone are not proof of discrimination, yet advocates of such nonsense continue to exploit our legal system. "No speck of evidence is required from those who implicitly assume that employee composition would be similar to population composition, in the absence of discrimination," writes Thomas Sowell in "Intellectuals and Race." "Moreover, not one flesh-and-blood human being who even claims to have been discriminated against is necessary for 'disparate impact' cases to go forward in a costly legal process."
As the Supreme Court prepares to hear arguments in the next big reproductive rights case, Sebelius v. Hobby Lobby, some of right-wing media's favorite talking points about women and sex have made their way into amicus briefs filed with the Court.
On March 25, the Supreme Court will hear oral arguments in Hobby Lobby, a case that could allow secular, for-profit corporate employers to impose their religious beliefs about birth control on employees by blocking their right to obtain contraceptives on company insurance plans. A ruling in favor of Hobby Lobby would not only significantly impact the religious freedoms of employees who have no moral objection to preventive health services like birth control, it would have a sweeping effect on years of corporate law precedent. But that hasn't stopped conservative, religious, and anti-reproductive rights groups from filing amicus briefs with the Supreme Court in favor of Hobby Lobby's position, parroting arguments often heard in right-wing media.
In a recent article in Slate, legal expert Emily Bazelon detailed how many of these amicus briefs, filed largely by religious conservatives, voiced arguments from a bygone era when it comes to reproductive rights. Bazelon wrote, "If it sounds like I'm describing a 1960s enraged sermon about the pill, I guess that's the point[.] I could be":
The Supreme Court will soon hear Sebelius v. Hobby Lobby, a case that could allow secular, for-profit corporations an unprecedented religious exemption from the Affordable Care Act's "contraception mandate," which requires all health insurance to cover preventive services like birth control without co-pays. A wide spectrum of scholars and experts have filed amicus briefs explaining that a ruling in favor of the corporate plaintiffs would not only rewrite First Amendment law, but also undermine decades of anti-discrimination and reproductive rights precedent.
Fox News continued its attacks on Debo Adegbile, President Obama's pick to head the Civil Rights Division of the Department of Justice, and seemingly conflated the advocacy efforts of a different civil rights attorney with Adegbile's legal work as proof of his supposedly "radical" past.
On March 5, all Senate Republicans and a handful of Democrats voted to block Adegbile's nomination following a smear campaign against Adegbile's sterling legal record by leveling racially-charged attacks and linking him to the crimes of his former client, Mumia Abu-Jamal. As a top official at the NAACP's Legal Defense Fund (LDF), Adegbile and a team of lawyers were successful in overturning Abu-Jamal's death sentence due to constitutional error. Because of the unconstitutional sentencing, Abu-Jamal's punishment was ultimately commuted to a life sentence after prosecutors elected not to pursue the death penalty for a second time.
After the failed Senate confirmation vote, Fox News continued its debunked attack that Adegbile was a "cop killer's coddler" for representing Abu-Jamal. The network then introduced a new argument that Adegbile's criminal defense work was politicized and that he "crusaded" for Abu-Jamal, "revealing a bitter bias." Referencing "critics," and Fox contributor Jonah Goldberg, Bret Baier claimed that Adegbile "went beyond the legal work and it was more about political rallies and leading rallies for Mumia and kind of became more political in his support for this character." Fox News contributor J. Christian Adams went even further:
[Adegbile] was not nominated in spite of his defense of Mumia Abu-Jamal, he was nominated because of it. Because these folks think that Mumia was innocent. It is not just a question of giving somebody their day in court. Adegbile took on the wider cause, claiming America was unjust towards people of color. It was because of this rancid racial attitude that President Obama appointed him in the first place and that is why he is mad.
The Wall Street Journal trotted out well-worn myths, many provided by the conservative lobbying group the U.S. Chamber of Commerce, to complain about the latest attack on class action lawsuits currently in front of the Supreme Court.
On March 5, the Supreme Court heard oral arguments in Halliburton v. Erica P. John Fund, a case that could make it more difficult for a class of shareholder plaintiffs to file lawsuits against corporations who commit fraud. At issue in this case is the "fraud on the market" theory, which was established by the Court in a 1988 case called Basic v. Levinson. The fraud on the market theory unremarkably assumes that a company's stock price reflects the information publicly available about that company -- including any false statements made by the CEO or other corporate officer. The fraud on the market theory allows plaintiffs to form a class action and sue based on that fraud, which have artificially inflated the stock price.
The WSJ, for its part, would like the Court to overturn Basic and get rid of this highly effective method of protecting everyday Americans from corporate fraud.
In a March 6 editorial, the paper essentially repeated all of the Chamber's talking points it presented at its February 28 event dedicated to the Halliburton lawsuit, including the idea that the only beneficiaries of securities litigation are plaintiffs lawyers, and that these class actions unfairly punish shareholders.
Fox News treated itself to a victory lap after several Senate Democrats joined with the Republican conference and blocked the nomination of civil rights litigator Debo Adegbile, President Obama's highly-qualified pick to head the Civil Rights Division of the Department of Justice (DOJ).
On March 5, the Senate procedural vote that would have allowed a confirmation vote on Adegbile's nomination failed, after right-wing media spent months lying about his background with racially charged attacks, even publishing an offensive caricature of Adegbile that was condemned by the nation's leading civil rights groups for invoking "the racist iconography of late 19th century America designed to dehumanize and stereotype African Americans." Outlets like Fox News continued to distort Adegbile's record in the run-up to the vote despite these denouncements, and despite the fact that Adegbile is a mainstream nominee who is regarded as one of the preeminent civil rights experts of his generation by a wide spectrum of authorities, including law enforcement executives and the American Bar Association.
After the vote, Fox host Bret Baier was quick to suggest that Senate Democrats who voted in favor of Adegbile could pay a penalty in the upcoming midterm elections. Baier went on to spread further misinformation about the nominee, falsely insinuating that he was part of an effort to overturn a murderer's conviction: