TheWire: The Supreme Court heard arguments for two controversial challenges to the Affordable Care Act’s contraceptive mandate yesterday. Based on the initial consensus of reporters who were in the room, it looks like the court, as expected, is either divided on the Hobby Lobby and Contestoga challenges to the mandate, or slightly sympathetic to at least part of the challengers’ arguments.
Judge Nap with Martha McCallum:
Justices Scalia, Alito, and Thomas (we assume), were broadly sympathetic to the challengers’ arguments, while the three female justices — Kagan, Sotomayor, and Ginsburg were sympathetic to the government’s case. The trio dominated questioning during the challengers’ oral arguments. Assuming Breyer votes with the liberal wing and Roberts goes with the conservatives, that leaves Kennedy as a key swing vote.
There are multiple questions at play here, and the court could end up with a narrower or mixed decision. Reuters, for instance, speculated that a majority could rule that corporations have a right to make religious claims, but that the contraceptive mandate itself does not merit one. The AP’s initial take was simply that the court was “divided.”
As for a possible narrower ruling, the Wall Street Journal has this note:
Chief Justice Roberts appeared to tip his hand when he told Mr. Verrilli that the parade of horribles — all kinds of religious exemptions being claimed by all sorts of employers, punching holes in the uniform application of the laws — could be avoided by a ruling limited to closely held enterprises, like S corporations that pass their earnings through to their shareholders. That would leave the issue of, say, an Exxon claiming religious freedom rights to another day. Later, Justice Breyer suggested he might be open to that type of resolution.
But we’ll have to wait for the actual opinion to know what the justices are really thinking.