Symposium: The return of Chief Justice Roberts

Erin Morrow Hawley is Associate Professor of Law and the University of Missouri School of Law.  She filed an amicus brief on behalf of the Independent Women’s Forum (where she is now a legal fellow) in support of the petitioners in Little Sisters of the Poor Home for the Aged v. Burwell.

In a surprise per curiam order today, the Supreme Court vacated and remanded the consolidated cases known as Zubik v. Burwell.

But make no mistake, today is a victory for employers, like the Little Sisters of the Poor, who have religious objections to the Affordable Care Act’s contraceptive mandate. In no uncertain terms, the Supreme Court requires accommodation, directing the parties to “arrive at an approach going forward that accommodates petitioners’ religious exercise” while ensuring that women covered by the religious non-profits’ health plans receive contraceptive coverage.

In addition to being a clear win for the religious non-profits, the clever per curiam decision reveals that, while many of the nation’s best lawyers take their seats at counsel’s table, others sit behind the Supreme Court bench. It reveals that the Obama administration has been masterfully outmaneuvered by the judges behind that bench. Indeed, in vintage John Roberts fashion, the short opinion snatches victory from the probable outcome of a tie.

It all began with the Supreme Court’s order requesting supplemental briefing. After oral argument, the Court requested additional briefing from the parties as to “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.”

In response, the religious non-profits clarified that their religious exercise would not be burdened where employees obtained contraceptive coverage through the non-profits’ insurance companies, “in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.” As for the federal government, it conceded that the Affordable Care Act’s 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.”

Now one might think that the government’s grudging response indicates that the religious non-profits should prevail on the merits. The government has admitted that, under a less restrictive means that does not require the involvement of religious employers, “affected women [could] received contraceptive coverage seamlessly.” In other words, the government’s alleged compelling interest in providing free contraceptive coverage could be met by regulations that do not implicate the non-profits’ religious liberty rights.

Of course, this assumes that the religious liberty rights of the Little Sisters of the Poor and other similarly situated religious ministries are in fact substantially burdened by current regulations which require employers to participate in the provision of drugs and devices to which they religiously object. Though Justice Sonia Sotomayor’s concurrence tries to head off this conclusion, it is hard to read the opinion’s accommodation directive any other way. Further, precedent, and Burwell v. Hobby Lobby Stores, Inc. in particular, suggests that the most important factor of the substantial-burden analysis is the religious adherents’ own view of the imposed burden. And no one here suggests that the nuns are insincere in their religious beliefs. So, why the order vacating and remanding?

Enter the elephant in the room: the Supreme Court is currently composed of only eight members. If one accepts the analysis above, then it seems likely that at least four members of the Court would have decided this case in favor of the non-profits, with the possibility of a four-to-four split. In the usual case of a four-to-four decision (either because of a Justice’s recusal or an eight-member court), there is some certainty even in a tied result. The lower court decision stands. While such a decision may mean that judicial resources have been unwisely expended, there is nothing to prohibit the Court from taking up the issue again in a case in which recusal is not an issue or once a new Justice has been confirmed.

Zubik is different, however, since the consolidated cases come from courts of appeals with contradictory results. A four-to-four decision would have led to disuniformity among the federal courts of appeals and engendered confusion over insurance plans, contraceptive coverage, and whether the government could pursue penalties against religious ministries like the Little Sisters of the Poor that refused to allow their insurance plans to be conduits for contraceptives to which they had conscientious objections.

In a masterful, Roberts-like opinion, the Zubik per curiam answers this uncertainty and uses the government’s forced admission to provide the relief sought by the non-profits. Relying on the government’s concession that a less restrictive regulatory means of implementation is possible, the Court directs the parties to work it out. More specifically, the government is implicitly instructed to modify its regulations so that religious employers do not need to participate in providing contraceptive coverage for their employers. In no uncertain terms, the Supreme Court requires accommodation, directing the parties to “arrive at an approach going forward that accommodates petitioners’ religious exercise” while ensuring that women covered by the non-profits’ health plans receive contraceptive coverage. And since the non-profits already have expressed their eligibility “for exemption from the contraceptive coverage requirement on religious grounds … the Government may not impose taxes or penalties on petitioners.”

The Court’s impatience with the contraceptive mandate may have administrative law at its roots. In recent terms, the Supreme Court, and Chief Justice Roberts in particular, has expressed reservations about supposed delegations by Congress to agencies of important questions of economic and political significance. Recall that the Affordable Care Act itself says nothing about contraceptive coverage or religious accommodation. Rather, Congress required qualified employers to provide “preventive care” for women, and a subsidiary agency of the Department of Health & Human Services (HHS) recommended that “preventive care” be interpreted to include all FDA-approved contraceptives. HHS later determined that houses of worship and their auxiliaries should be exempt.

In this case, the Little Sisters of the Poor don’t qualify for the exemption because their ministry (caring for the dying) serves those who do not share their faith. Given that the Religious Freedom Restoration Act – a separate statute requiring religious accommodation – does not contain any such limitation, the department’s attempt to force religious non-profits to violate their conscience may seem extravagant to a Supreme Court concerned with agency overreach.

In all events, though the particulars of the religious accommodation will need to be worked out on remand, the per curiam decision is unquestionably a win for the non-profits. It may also signal the return of the Roberts Court. Early on, the Chief Justice had a reputation for orchestrating consensus conservative outcomes, a reputation displaced by the recent ACA litigation. But today’s order suggests that the skillful Roberts is still at work, and still capable of surprising.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case. The author of this post, however, is not affiliated with the firm.]