There are a good amount of people upset with the Supreme Court over its Hobby Lobby decision, and you can count federal judge Richard Kopf among them. Kopf, an H.W. Bush appointee to the Nebraska District Court, has the unusual habit (for a federal judge) of maintaining a blog about his thoughts on the court system — and often unfiltered thoughts at that. On Saturday, Kopf took to his blog to argue that perhaps the Supreme Court shouldn't have taken on the Hobby Lobby case at all, thus not setting a wide precedent and allowing the executive or legislative branches of government work out a solution. "As the kids says," Kopf writes, "it is time for the court to STFU."
"What would have happened if the Supreme Court simply decided not to take the Hobby Lobby cases?"
Kopf doesn't touch on the legal elements of the decision, but he breaks down how it appears from the outside: partisan, sexist, religiously motivated. "To the average person, the result looks stupid and smells worse," Kopf writes.
In part, this is why Kopf argues that the court should start taking a lighter touch when dealing with major issues. He cites legal philosopher Alexander Bickel in arguing that the Supreme Court should generally avoid highly controversial cases unless the fate of the nation is at hand. "What would have happened if the Supreme Court simply decided not to take the Hobby Lobby cases?" Kopf asks. "Had the court sat on the sidelines, I don’t think any significant harm would have occurred. The most likely result is that one or more of the political branches of government would have worked something out. Or not."
In closing, Kopf argues that the court has been causing more harm than good by taking on such controversial cases recently. While the Supreme Court has the power to decide those, Kopf quite bluntly suggests that the court recognize that it has the power to avoid cases as well.