One of the reasons Clarence Thomas gives for the studious silence he maintains during Supreme Court hearings is that his fellow justices have shown an increasing tendency to talk too much during oral arguments, thus preventing advocates from presenting their arguments coherently. Yesterday’s Supreme Court hearing in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius suggest that Thomas is right.
Paul D. Clement, who appeared on behalf of the two companies challenging the Obamacare contraception mandate, was repeatedly interrupted and badgered by justices Sotomayor, Kagan, and Ginsburg. The transcript from yesterday’s hearing shows that Clement was permitted to talk less than 30 seconds before he was interrupted by Justice Sotomayor with a belligerent question that had nothing to do with any of the 49 words he had thus far uttered:
MR. CLEMENT: Mr. Chief Justice, and may it please the Court: When a Federal Government agency compelled employers to provide something as religiously sensitive as contraception, it knew that free exercise in RFRA claims would soon follow. In particular, the agency itself provided exemptions and accommodations for the religious exercise of a subset …
JUSTICE SOTOMAYOR: Is your claim limited to sensitive materials like contraceptives or does it include items like blood transfusion, vaccines? For some religions, products made of pork? Is any claim under your theory that has a religious basis, could an employer preclude the use of those items as well?
Sotomayor knows perfectly well that the two companies whose case Clement was attempting to explain to the Court has nothing to do with blood transfusion, vaccines, or pork. So, Clement soldiered on for about a minute, trying to explain that the government would have a more “compelling interest” with regard to vaccinations than it does in the case of abortifacients like the morning after pill. At this point, he was again interrupted, this time by Justice Kagan:
JUSTICE KAGAN: So really, every medical treatment. And Justice Sotomayor is quite right that there are quite a number of medical treatments that different religious groups object to. So one religious group could opt out of this and another religious group could opt out of that and everything would be piecemeal and nothing would be uniform.
Clement tried again to explain the difference between this implausible hypothetical and the actual case under discussion. However, after another 30 seconds or so, he was interrupted by Justice Ginsburg with a non sequitur concerning the Religious Freedom Restoration Act (RFRA). At this point, Justice Kennedy attempted to get the hearing back on track with the following statement to Clement: “You were beginning by giving us a framework for your argument…” Clement tried to take advantage of this opportunity, but he didn’t get very far before he was again interrupted by Kagan.
And so it went for the rest of time allotted to Hobby Lobby and Conestoga to make their case. Ironically, despite the transparent partisanship of Sotomayor, Kagan, and Ginsburg, it was clear that a majority of the justices were at least sympathetic to the claims of the two companies. As Reuters reports, “The U.S. Supreme Court signaled on Tuesday it may allow corporations to mount religious objections to government action, possibly paving the way for companies to avoid covering employees’ birth control as required under Obamacare.”
This conclusion was largely due to a suggestion, by Chief Justice Roberts, that it would be possible to rule in favor of Hobby Lobby and Conestoga based on their status as closely held private corporations, while leaving the question of how to deal with corporations whose shares are publicly traded in the unlikely event that such an entity claimed to have religious objections to some federal mandate. Such a ruling he said, would “avoid all the problems” outlined by the Solicitor General if the justices rule against the Obama administration in the cases argued yesterday.
Adding to the impression that the “conservative” justices may rule in favor of the two companies were several other comments they made to the Solicitor General during his portion of the oral arguments. Justice Alito was obviously quite unsympathetic to General Verrilli’s claim that neither Hobby Lobby nor Conestoga has a right to bring suit based on RFRA, and Justice Kennedy put some very difficult questions to Verrilli.
Kennedy was particularly interested in the rationale behind exempting some entities from the contraception mandate while declining to exempt others: “You have exempted a whole class of corporations and you’ve done so under your view not because of RFRA.… Now, what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?” Justice Scalia also indicated that he was uncomfortable with selective exemptions.
Nonetheless, it isn’t at all obvious how Scalia or even the liberal justices will vote. As was made all too clear in June of 2012, the questions they ask during the oral argument phase of a Supreme Court case is no guide to how they will finally rule. Kennedy is again being discussed as the “swing vote.” In the case of the individual mandate, however, it was Roberts that saved Obamacare’s bacon. So, once again, we find ourselves swinging in the wind until June, when the justices hand down their decision from on high.