Hobby Lobby III: Two Tens For A Five

That narrow decision in Hobby Lobby, based on the availability of the accommodation provided by HHS to non-profit religious groups? Guess what the Supreme Court found yesterday in a preliminary decision might violate RFRA now--the very accommodation it based its finding that a less restrictive alternative was available.

Justice Sotomayor's opinion, joined by Justices Ginsburg and Kagan, points out, in language seldom used about the Court by sitting justices:

Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates [the Religious Freedom Restoration Act] as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, retreats from that position. That action evinces disregard for even the newest of this Court's precedents and undermines confidence in this institution.

The Court had before it an emergency application in a case still pending before the District Court, under the All Writs Act, which requires an especially high showing; the petitioner must establish a clear and indisputable right to the requested relief.

In this case, Wheaton College does not wish to file the exemption form with its insurer, which would put the insurer on notice as to its obligation under HHS rules to provide contraception, making it complicit in the provision of the insurance coverage for contraception. As the NYT summarizes:

On Thursday, the court’s majority said all Wheaton had to do was notify the government in writing “that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraception services.”

The difference between a form sent to insurers and plan administrators on the one hand and a letter sent to the government on the other mattered, the college told the justices, “because it believes, as a religious matter, that signing the form would be impermissibly facilitating abortions and is therefore forbidden.”

The Roberts Court has become known for issuing so-called narrow rulings and then subsequently broadening their scope (That's how the Court gutted the Voting Rights Act and the Fifteenth Amendment in Shelby County), but it normally takes a little time to at least pay lip service to the notion of common law adjudication. Here, the HHS exemption went from being the relied upon "less restrictive means" on Monday to a "substantial burden" on Wheaton College's religion from which it has a "a clear and indisputable" right to be free from Thursday?

This really is legislation from the bench, absent even a fig leaf of legal reasoning. As Sotomayor points out, the standard under the All Writs Act is not at all met (in fact, the evidence cited by the majority, divisions among lower courts, is usually used to establish that the right is not "clear and indisputable"), the rapid recasting of the Court's own decision, less than a week after it issued, smacks of a carny grifting a mark, not judicial reasoning.