A few quick observations on the Supreme Court's decision yesterday in Zubik v. Burwell, the contraception mandate case. Zubik presents the question of whether the administration's accommodation for religious nonprofits—such as the Little Sisters of the Poor, who argue that despite the accommodation, the mandate requires them to provide contraceptive coverage as part of their health plans, in violation of their religious convictions—violates the Religious Freedom Restoration Act. Yesterday, the Court declined to rule on this question. Instead, it remanded the case to the lower courts for further consideration.
Some commentators, including the New York Times, have decried this result as the inevitable consequence of having an eight-member Court, which prevents the formation of five-person majorities in close cases. If only the Senate had confirmed Merrick Garland, we wouldn’t be in this fix. But it’s worth noting that the Court’s opinion yesterday was unanimous. All eight Justices joined it in full. If Merrick Garland had been on the Court, it likely would have been 9-0. In fact, an unsigned, per curiam opinion like yesterday’s traditionally signals that the Court does not view a decision as particularly significant or controversial.
Now, it’s true that Justice Sotomayor, joined by Justice Ginsburg, wrote a separate concurrence. But in Supreme Court practice, a concurrence signals that the author agrees with the Court’s reasoning and wishes only to offer further support or to highlight certain aspects of the case. And that’s what Justice Sotomayor did here. She went out of her way to highlight the fact that the Court was not ruling on the merits of the case. I’m not sure that this was entirely necessary; the Court itself expressly said that it was not ruling on the merits. But, anyway, her writing separately doesn’t reflect disagreement with the Court’s reasoning.
So the Court does not seem to have been divided at all. Now, it’s possible, as some speculate, that the Court did a quick vote after oral argument, saw that there would be no clear majority on the merits, and sought a compromise that would preserve the Court’s credibility while allowing further consideration down the road, when the Court is back to nine members. But that’s more than we can know right now, and, at least to me, there seems another, more likely explanation for the Court’s unanimity: The Court determined that the whole dispute may well be unnecessary.
After oral argument and supplementary briefing in March, it became clear to the Court that there might be a way out of the conflict the lower courts had missed. It might be possible for employees to receive contraceptive coverage without requiring employers to file the so-called “opt-out form”—the form to which the petitioners had objected on religious grounds. As the Court explained:
Following oral argument, the Court requested supplemental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.” Both petitioners and the Government now confirm that such an option is feasible. 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. The Government has confirmed 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.”
In other words, the parties might be able to reach a settlement that will satisfy everyone. The Supreme Court is not the place to hammer out such a settlement, though, so the Court remanded the dispute to the lower courts, which, it said, were in a position to “allow the parties sufficient time to resolve any outstanding issues between them.” (Hint, hint.) In that event, the dispute would be moot—and it is hornbook law that courts, including the Supreme Court, do not decide moot issues. As one commentator observed, what the Court is saying is, “We don’t need to decide this case right now. The parties should be able to work it out for themselves.”
Although the Court did not rule on the merits, it’s hard not to see yesterday's ruling as a loss for the Obama administration. A determination that the dispute may not have been necessary at all is, implicitly, a judgment on the administration’s strategy in these cases. The administration has taken a very hard line on the contraception mandate, harder than it needed to in order to achieve its stated goal of providing cost-free contraceptive coverage for women. Two terms ago, in Hobby Lobby, the Court ruled that the administration could reach that goal without requiring for-profit corporations with religious objections to cover contraceptives in their health plans. Now, the Court has suggested that the administration can reach that goal without requiring religious non-profits like the Little Sisters to violate their religious convictions. So why did the administration take such a hard line? Why didn’t it accommodate the concerns of people with religious objections to the mandate—an extremely small group, it must be conceded—especially as accommodation wouldn’t have changed the ultimate outcome? It’s almost as though the administration had goals other than women’s health in mind.