an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
On to the Supreme Court: Status update on Roman Catholic Archbishop, Little Sisters, and the other nonprofit contraception accommodation cases [UPDATED with Little Sisters reply brief]
Since I last wrote, about the nonprofit RFRA challenges to the government's contraceptive coverage accommodation, a circuit split has developed, by virtue of a pair of decisions by the U.S. Court of Appeals for Eighth Circuit--Sharpe Holdings, Inc. v. HHS and Dordt College v. Burwell. In each case, the court of appeals affirmed grants of preliminary injunctions in favor of the RFRA claimants. The court found that the plaintiffs were likely to prevail on showing that the contraception coverage accommodation substantially burdens their religious exercise. As for the "least restrictive means" part of the RFRA analysis, the court did not assess the merits, but simply concluded that the government had not yet offered evidence, at the p.i. stage, sufficient to carry its burden of showing that denial of the requested exemptions would be the least restrictive means of advancing what the court assumed to be a compelling governmental interest.
Meanwhile, over in the Supreme Court, there are seven petitions for certiorari pending, from cases decided by the D.C., Third, Fifth and Tenth Circuits. This afternoon, in its brief in opposition to certiorariin Nos. 15-105, Little Sisters of the Poor v. Burwell, and 15-119, Southern Nazarene Univ. v. Burwell, the government informed the Court that certiorari in an appropriate case is now warranted in order to resolve the split created by the recent Eighth Circuit decisions.
As expected, the government argues that the most suitable vehicle for the Court's review is Case No. 14-1505, Roman Catholic Archbishop of Washington v. Burwell. As I explained earlier, and as the government elaborates in its brief today, the Roman Catholic Archbishop petition is the best candidate for cert. because of several considerations, including that:
-- The case was decided on the merits (cross-motions for summary judgment), not on a motion for preliminary relief.
-- The petitioners present the full range of insurance arrangements that have given rise to RFRA claims in the nonprofit context, including insured plans, self-insured plans, and self-insured church plans. (As the opinions in the recent Tenth Circuit case demonstrate, the RFRA analysis is very different with respect to each distinct sort of plan.) This petition also involves both employee and student plans.
-- The petitioners object to the entire range of the 18 covered contraception methods, not only the four at issue in Hobby Lobby and other cases.
-- Judge Pillard's two opinions in favor of the government are very thorough (and she addressed the statutory claim, as well). The en banc petition in the case also prompted two distinct dissenting opinions, by Judges Brown and Kavanaugh, which differ from one another in important respects.
-- Most importantly, the D.C. court of appeals, unlike the other courts of appeals thus far, squarely and thoroughly addressed both the substantial-burden and so-called "strict scrutiny" components of RFRA.
Moreover, the Roman Catholic Archbishop petitioners, represented by Noel Francisco of Jones Day, have honed their arguments, especially on the "substantial burden" question, to eliminate many that are easily countered (including most of those I discuss here) and to emphasize those that are most likely to engage the Court. (For what it's worth, I have offered some preliminary thoughts on those arguments in the final sections of this post, beginning with the section entitled "Substantial Burdens and Complicity.")
Some of the other petitions also have one or more of these virtues (and superlative counsel, such as Paul Clement); but no other has them all.
The Court originally was scheduled to consider some of the petitions--those that are fully briefed--at its "long" conference tomorrow. Last week, however, it postponed consideration of those petitions, presumably so that it can consider all seven of the pending petitions at a single conference. With the government's filing today in Little Sisters/Southern Nazarene, only two briefs are outstanding--the petitioner's reply briefs in Little Sisters and Southern Nazarene themselves. [UPDATE: Petitioners in Little Sisters filed their reply brief on October 13, as did the petitioners in Southern Nazarene. The petitions therefore are now ready for the Court's consideration.] As soon as those briefs are filed, it is likely that the Court will set all of the petitions for consolidated consideration, perhaps as early as at its October 30 conference. [UPDATE: The Court has set all seven pending cases for the October 30 conference.]