This morning, I had the oddest sense of deja vu to June 25, 2015, the day King v. Burwell was decided. On both days, I was not expecting an Obamacare decision, but it came out of the blue. On both days, I had a sinking feeling beforehand that the side I filed a brief on was going to lose in a devastating way, but I didn’t quite know how. On both days, I couldn’t bring myself to read the opinion right away, because I understood once I read it, it would become real. On both days, my faith in the law was weakened.
In his report from the Court, David Savage noted that “Chief Justice John G. Roberts Jr. read a three-page statement in the court Monday, announcing what sounded like a settlement.” In every respect, it was a settlement, and not a judicial resolution of the “case” or “controversy” before them. Let me break this down.
In their complaint filed in September 2014, the Little Sisters offered a literal (and figurative) prayer for relief–to declare that the mandate, even as alleviated by the “Accommodation-“-violated RFRA:
Declare that the Final Mandate and Defendants’ enforcement of the Final Mandate against the Plaintiffs violate the Religious Freedom Restoration Act, and that no penalties can be charged or assessed against the Plaintiffs for failure to offer or facilitate access to contraceptives (including abortifacient contraceptives), sterilization procedures, and related education and counseling, including any penalties under 26 U.S.C. §§ 4980D and 4980H;
In November 2015, the Supreme Court granted certiorari to answer a reworded, but identical question presented:
1. Whether the HHS Mandate and its “accommodation” violate the Religious Freedom Restoration Act (”RFRA”) by forcing religious nonprofits to act in violation of their sincerely held religious beliefs, when the Government has not proven that this compulsion is the least restrictive means of advancing any compelling interest.
On March 29, 2016–six days after the case was argued–the Court asked the parties to address an alternate accommodation. (It has been decades since the Court requested such briefing after oral argument in a case). Under this unicorn accommodation–which no party had ever suggested before this point–plaintiffs would not have to notify the insurance companies that they object to the mandate, only that they do not “do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds.” Then, the insurance company would contact the employees, and provide them with cost-free contraceptive coverage, with a government reimbursement.
When I wrote about this order, I looked at it through the lens of RFRA. Under RFRA, if there is a less restrictive means to accomplish the same compelling interest, then the provision that substantially burdens free exercise is contrary to law. In other words, once you identify a way for the government to provide “seamless” contraceptive coverage, that is less burdensome that the accommodation proposed in the Federal Register, then the Little Sisters win. In O’Centro, Hobby Lobby, and other RFRA cases, when the Court found a violation that was the end of the road. The Court never suggested the parties mediate, and figure out a different way of accommodating religious liberty and the government’s compelling interests.
On April 12, the petitioners and respondents filed their supplemental briefs. The Petitioners made the same point I made in the previous paragraph–once you identify a less-restrictive means that serves the same compelling interest, they win!
If the coverage can be provided in a way that eliminates that role, then it can be provided in a way that satisfies RFRA.
The government made a very different point–to implement the accommodation the Court proposed, the government would likely have to undertake an untenable interpretation of ERISA.
If the Court determines that some aspect of the present process for opting out renders the accommo- dation inadequate to meet petitioners’ objections to the contraceptive-coverage requirement, it should hold that the Departments may not require compli- ance with the relevant requirements as a condition to invoking the accommodation . . . . Alternatively, if the Court were to conclude that objecting employers may not be required to communi- cate their objections in writing at all, it should hold unenforceable those portions of the regulations that require an employer to provide a written notice to HHS or a self-certification to its insurer, and to maintain a copy of the notice or self-certification in its records. See 45 C.F.R. 147.131(b)(3) and (c)(1).9
Presented with this information, the Supreme Court threw RFRA and ERISA to the wind.
In its brief per curiam order, the Court first observed:
Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company. Supple- mental Brief for Petitioners 4.
Second, the Court observed:
The Government has con- firmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.” Supple- mental Brief for Respondents 14–15.
So like Donald Trump (trolling Ilya and Randy), the Justices struck a terrific deal! The Court vacated the judgments, and remanded the cases to the Third, Fifth, Tenth, and D.C. Circuits. At first blush, this looks like a routine GVR. That is, the Court remanded a case after some intervening precedent rendered the Court’s current involvements unnecessary. The Court even tried to cite some precedents to make this look routine!
“This Court has taken similar action in other cases in the past.”
Don’t be fooled. None of these cases support what was done today.
First the Court cites Madison County v. Oneida Indian Nation of N. Y., 562 U. S. 42, 43 (2011) (per curiam). In Madison County, “Counsel for respondent Oneida Indian Nation advised the Court through a letter” that a tribal declaration and ordinance was passed that waived its sovereign immunity. As a result, the Court remanded the case to the Second Circuit to “address, in the first instance, whether to revisit its ruling on sovereign immunity in light of this new factual development, and—if necessary—proceed to address other questions in the case consistent with its sovereign immunity ruling.” The intervening event was a change in the underlying law by the Oneida Indian Nation.
Second, the Court cites Kiyemba v. Obama, 559 U. S. 131, 132 (2010) (per curiam). This case changed after certiorari was granted because “each of the detainees at issue in this case has received at least one offer of resettlement in another country.” The Court noted that “This change in the underlying facts may affect the legal issues presented.” Since “no court has yet ruled in this case in light of the new facts, and we decline to be the first to do so.” The case was remanded to CADC to “determine, in the first instance, what further proceedings in that court or in the District Court are necessary and appropriate for the full and prompt disposition of the case in light of the new developments.” Again, intervening events outside the Court–offers of resettlement–made the remand appropriate.
Third, the Court cites Villarreal v. United States, 572 U. S. ___ (2014). The “case [was] remanded to the United States Court of Appeals for the Fifth Circuit for further consideration in light of the position asserted by the Solicitor General in his brief for the United States filed on March 21, 2014. Not even close, as certiorari was never granted in the first place.
Theses cases are inapposite to the situation in Zubik. None of these three cases were argued; Zubik was. In each of these three cases, intervening events transpired outside the Court; Zubik’s intervening event came from inside the Court. In each of these three cases, the lower court was asked to take a fresh look at the case in light of the external events; in Zubik, the lower courts are asked to reconsider the cases in light of the Court’s ideations. These citations were pathetic window dressings to make this unprecedented order look routine.
I feel bad for the law clerk who had to put together this string cite to justify this bizarre decision. Imagine the conversation.
Justice: We are going to remand Zubik based on the idea we proposed in our order.
Clerk: Has the Court ever done something like this before?
Clerk: So how are we going to justify this?
Justice: Go find some cases where we GVR’d based on a change in circumstances. That will do it.
Clerk: Whatever you say, Chief.
If the Court were calling balls and strikes, they would admit frankly that this has never been done before. Instead, they tossed a changeup.
The intervening precedent was one of the Court’s own invention. Neither the Little Sisters’ complaint, nor the Court’s question presented, nor anything else in the record permits such a resolution. Indeed, it takes some chutzpah for the Court to write:
The Court finds the foregoing approach more suitable than addressing the significantly clarified views of the parties in the first instance.
After listing these precedents which provide no support for what it did, the Court feigns neutrality, when it is clearly not neutral:
The Court expresses no view on the merits of the cases. In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.
Adulterated applesauce (it’s not pure). The only reason why this remand was necessary, is because the government couldn’t win with the accommodation published in the Federal Register. If the government’s accommodation complied with RFRA, this entire SCOTUS-kabuki-theater would be superfluous. Justice Sotomayor’s concurring opinion, where she warned (threatened?) the Circuit Courts “not [to] make the same mistake” of reading the Court’s opinion as a “signal” is rich. Anyone who reads this order knows exactly what it means. A two-Justice concurring opinion doesn’t change that.
Of course, what is lurking under this entire project is the fact that they are down to eight Justices. No doubt, after conference, this case tied 4-4, so they came up with this half-hearted measure to avoid issuing a 4-4 decision. I read the decisions’ reference to the “gravity of the dispute” to embrace the nature of the short-handed Court, but I may be off on that.
There were four possible legitimate outcomes for Zubik. (1) The accommodation violates RFRA, (2) the accommodation does not violate RFRA, (3) a 4-4 affirmance, or (4) the case is held over for reargument next term The Court’s order today followed none of the above–it is really a shadow-DIG that somehow vacates the lower court judgments (Indeed, this is how we are scoring it on FantasySCOTUS).
So what happens on remand? Twelve judges on four circuits will consider whether the Court’s hypothetical accommodation satisfies RFRA? Maybe the judges will decide, based on the availability of the Court’s proffered accommodation, that a least-restrictive means exists so that the actual accommodation fails? Maybe the en banc proceedings will drag this out another year? As it stands, all of the plaintiffs that have already sued have effectively provided notice, so the government can implement this workaround now? (Although new plaintiffs who didn’t sue may raise the new objections). Maybe the Obama Administration will publish this proposal in the Federal Register, thereby mooting all of the litigation, and starting from square one? (This may be a prudent move, because the Court has “signaled” that this may work). Maybe the case will come back up to the Court next year and Justice Garland or Justice Sykes can cast the tie-breaking vote one way or the other?
No doubt the Little Sisters are happy, and the government is relieved. The Little Sisters will not be forced to violate their conscience, and the Obama administration can hopefully find a way to save face, and pursue their compelling state interest of providing the employees of the Little Sisters with cost-free birth control. Everyone wins, right? Wrong. This is not a good day for the rule of law. All 8 Justices, all of them, signed an order that was inconsistent with the role of the Supreme Court to resolve the actual controversy before them. The Justices turned the curved bench at One First Street into a round ADR table. This decision only looks good by looking at the outcome, but now how they got there.
What the Court did here is even less defensible than the Chief’s saving construction of the mandate, his decision to rewrite the Medicaid expansion, or his application of the “Obamacare canon” to Section 36B. The Court disregarded the actual accommodation that has been litigated for years, made up an alternate premise–which if RFRA was taken seriously means the Little Sisters win–and burdened the lower courts with the unenviable task of creating another meaningless circuit split which may be picked up by the Court in the future.
On the plus side, I can now finish Unraveled. I had worked out an arrangement with Cambridge than the final chapter would be due on July 5, roughly one week after the end of the term. I planned to scramble and finish writing about whatever it is the Court did. Now, the conclusion will take a very different route, as I tie together NFIB, King v. Burwell, and Zubik.