Wednesday, November 18, 2015

Court grants all seven nonprofit petitions in contraceptive coverage cases, henceforth to be collectively referred to as "Zubik v. Burwell" [UPDATED to include briefing schedule]

Marty Lederman

Today the Court decided not to decide among the seven petitions in the contraceptive cases--it granted (and consolidated) them all on the RFRA question.  The Court did not grant on the two questions alleging that the government has impermissibly discriminated among religious organizations, one of which (in Zubik) was nominally a RFRA question and the other of which (in Little Sisters) was framed as a First Amendment question.

The case will be argued some time between March 21 and March 30.  Presumably only one of the five counsel of record for petitioners will present oral argument--if I had to guess, it'll be Paul Clement or Noel Francisco.  (The Court itself ordinarily leaves it to the parties in such a situation to figure out a way to decide which counsel will argue.)  The Court has also asked the parties "to submit a joint proposal for briefing on the merits that will keep the number of briefs to a minimum and avoid repetition of argument."  Therefore I don't think we should expect to see 400+ pages of party briefs topside and 200+ pages on reply.  The petitioners might even decide to submit a single, unified brief at each stage.  [UPDATE:  The Court has granted the parties' proposal for briefing:
Petitioners in Nos. 14-1418, 14-1453, and 14-1505 will file one consolidated opening brief and one reply brief.  Petitioners in Nos. 15-35, 15-105, 15-119, and 15-191 will file one consolidated opening brief and one reply brief.  Petitioners’ opening briefs, not to exceed 20,000 words each, are to be filed on or before January 4, 2016.  Respondents will file one consolidated brief, not to exceed 22,500 words, on or before February 10, 2016.  Petitioners’ reply briefs, not to exceed 8,000 words each, are to be filed on or before March 11, 2016.] 
The decision of the Court will likely be captioned, and popularly referred to, as No. 14-1418, Zubik v. Burwell, which was the first of the petitions to be filed.  [UPDATE:  See my post here about who "Zubik" is, and offering a typology of the many different sorts of petitioners (and insurance plans) in the seven cases.]

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