My explanation, slightly crude but perhaps compelling: All the justices, presumably, have cellphones. Only three have uteruses, and you know which way they voted.
Of course, a uterus is not a prerequisite for understanding the importance of access to birth control. See, e.g., Justice Stephen Breyer, who voted with Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan to uphold the contraceptive mandate.
But let’s be clear – it helps. Justices are people, not legal robots mechanistically applying laser-sharp rules. They bring to the job an understanding of the world shaped by their experiences.
That background, in turn, informs the task of applying constitutional phrases (“unreasonable searches and seizures”) to circumstances unimagined by the framers (not just telephones, but telephones smart enough to contain the digital entirety of a life), or of balancing competing claims (the religious freedom of employers versus the governmental interest in assuring wide access to contraception).
The cellphone and contraceptive cases offer reminders of this fundamental truth. In the cellphone case, the court could have applied its long-standing exception to the warrant requirement for a search “incident to an arrest.” After all, if an arrested suspect happens to be carrying his diary, police do not need judicial approval to read it.
But the justices understood that smartphones are different. “Modern cellphones,” observed Chief Justice John Roberts, “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”
“A decade ago police officers searching an arrestee might have occasionally stumbled across a highly personal item such as a diary,” Roberts wrote. “Today, by contrast, it is no exaggeration to say that many of the more than 90 percent of American adults who own a cellphone keep on their person a digital record of nearly every aspect of their lives….”
By contrast with the cellphone user, the interests of the contraceptive users are almost entirely absent from the majority opinion in Burwell v. Hobby Lobby. So absent, in fact, that Justice Anthony Kennedy took pains to note in concurrence that “a premise of the court’s opinion is its assumption that the [contraceptive mandate] furthers a legitimate and compelling interest in the health of female employees.”
Some of this difference can be attributed to the contrasting structures of the two cases: The cellphone dispute is between the government and the phone owner; the contraceptive mandate involves three interests – the employer claiming a religious exemption, the government defending the requirement and female employees impacted but not technically party to the case.
Still, it fell to the dissenters to, in Abigail Adams’ phrase, remember the ladies.
The women barely present in Justice Samuel Alito’s majority opinion, and their interests in affordable birth control, emerge fully in the dissent. Ginsburg, citing an abortion rights ruling, noted that “the ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.” She traced the legislative history of the Affordable Care Act, and the effort (driven – duh! – by female senators) to expand women’s access to preventive care.
And she detailed the importance of ensuring affordability – noting that the cost of intrauterine devices “is nearly equivalent to a month’s full-time pay for workers earning the minimum wage.”
The phenomenon of life experience influencing outcome is not unique to the cellphone and contraceptive cases; it is embedded in the act of judging.
A Latina justice brings to the affirmative action debate an experience alien to that of a white male justice; Jewish justices experience government-erected crosses and government-sponsored sectarian prayers in a more skin-prickling way than their Christian counterparts.
To recognize this is the first step toward what should be the judge’s goal: to move past obvious points of identification and empathy, and to imagine walking a few miles in the other side’s shoes.
Or, in the contraceptive case, the other side’s heels.