Some of you regular readers out there may wonder why it is that so few of the lawyers who write for Ordinary Times didn’t author any posts about the high-profile Hobby Lobby case that was argued before the Supreme Court a few weeks ago and in fact why we didn’t really sound off all that much about it in comments on the threads that were posted. Maybe you figured we were all just waiting for the opinion, or maybe you figured none of us had particularly strong feelings about it, or maybe you figured none of us felt knowledgeable enough about its subject matter to take it on. If so, you figured wrong.
What we’ve done is to self-select some of our number and assume the role of a phantom Supreme Court. If we were the Justices of the Supreme Court, how would we rule? And more importantly, what opinions would we write?
Behind the scenes, Mark Thompson, Dave, Tim Kowal, Michelle, and I self-selected to constitute the Court. Dave is not a lawyer but is at least as knowledgeable about Constitutional law as the rest of us, that being a large part of his scholarly oeuvre. By acclamation (I guess because it was my idea), I became the Chief Justice of the resulting Ordinary Court.
From there, we each read the opening, responsive, and reply merits briefs, a handful of amicus briefs, and the transcript of the oral argument. Then, amongst ourselves and in imitation of what the actual Supreme Court does, we took votes, deliberated amongst ourselves, drafted opinions, circulated them, edited them in response to one anothers’ arguments, and repeated until we were satisfied we reached our ultimate conclusions. We all enjoyed the process, and I suspect that we will be doing this again in the near future for another case.
Because this is an online magazine format rather than an actual court, we’ll be announcing our opinion in stages, over multiple postings. Stay tuned, then, for the roll-out of the Ordinary Court’s first opinion, Sibelius v. Hobby Lobby Stores, Inc., et al. Our decision will be announced in four parts, with the ultimate disposition coming in the final post.
And, since we’ve announced our decision well in advance of the real Supreme Court, when that does come down (I expect some time in mid-June) you can compare what really happened with what we would have done. Bear in mind, though, the ruling we’re going to publish reflects our reasoning rather than either our predictions or our preferences.
Therefore, you are enjoined to read the upcoming Ordinary Court posts! It is so ordered.
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.