How does the Court avoid a 4-4 split in the Little Sisters of the Poor case?

I've received some skeptical reactions to the concluding assertion in my prior post on the Little Sisters of the Poor case that "it's difficult to see how the government wins." The question on people's minds is how the Little Sisters and their fellow petitioners pick up a fifth vote after Chief Justice Roberts, Justice Kennedy, Justice Thomas, and Justice Alito. 

This is a fair question. And the fair answer is that I can't say with certainty (nobody outside the Court can!), but the probabilities look good given the various arguments aired and at work in the case.

I start with the assumption that the Justices would like to avoid a 4-4 split on these cases. They've been dealing with some of these cases on their shadow docket for a while now, and they do not want to prolong uncertainty or perpetuate disuniformity. So they want to find a way to avoid an even split if they can. 

Next, any break from 4-4 is most likely to be in petitioners' favor. It's possible that the government loses on substantial burden yet somehow wins on strict scrutiny. But I don't think that's in the cards after considering the briefs and observing arguments.

The government seemingly came in from the lower courts riding high on "no substantial burden," but that position did not fare well in questioning at the Court. Most of the government's arguments accordingly focused on the elements of strict scrutiny: compelling interest and least restrictive means. On these elements, though, the government's arguments and evidence are underdeveloped. 

One of the more interesting developments at oral argument was the government's attempt to avoid several less restrictive means by gerrymandering its claimed compelling interest to exclude them. Chief Justice Roberts picked up on this near the beginning of Solicitor General Verrilli's argument. "Your compelling interest," observed Chief Justice Roberts "is not that women obtain contraceptive services. Your compelling interest is that women obtain the contraceptive services through the insurance plan or the third-party administrator hired by the Petitioners, hired by the Little Sisters. In other words, it seems to me you can't say that what you're trying to do is make sure everybody has this coverage. You want to make sure they have it through the program set up by the Little Sisters, and that's what they object to."

Justice Kagan picked up on the government's contraction of its compelling interest as well. One of her questions for petitioners' counsel limited the universe of accommodations available to those that ran through petitioners' plans: "Is there any accommodation that the government would offer that would in fact result in women employees of your clients, or students of your clients, getting health care as part of an employer-based plan or a student-based plan, getting contraceptive coverage? Is there any accommodation that would be acceptable?"

One problem with the government's approach, as Michael McConnell has noted, is that it is "entirely circular; it essentially eliminates the least restrictive means analysis by baking the means into the alleged compelling interest." And another problem, he further notes, is that the government already expects to serve its interests in contraceptive coverage and other preventive services for many other employees outside of the employer-based health system by using the exchanges. 

Which brings us to the brief by Douglas Laycock that was mentioned by both Justice Kagan and Justice Ginsburg at oral argument. These Justices invoked this brief's arguments when petitioners' counsel pointed to the government's failure to justify the line that the agencies drew between exempt and nonexempt religious organizations.

At least as of the time of their questions, these Justices appeared to have accepted Professor Laycock's argument that scrutinizing this line to see if the government drew its exemption too narrowly would threaten specific religious exemptions. The gist of the argument is that the government won't provide specific religious exemptions at all if judicial scrutiny of their boundaries would result in willy-nilly judicial expansion.

The argument fails, however, if there is a guiding principle for judges to use in assessing the government's decision on the shape of its exemption. And here there are two. 

The first is RFRA itself. When the agencies decided on regulations to implement the women's preventive services provision, they were obligated to follow both the ACA and RFRA. The government obscures this by treating its exemption for churches and integrated auxiliaries as a matter of administrative grace. As Professor Laycock himself recognizes, though, and as Hobby Lobby holds, imposing the contraceptives mandate directly on religious objectors would violate the RFRA. 

Even if someone rejects the idea that the exemption for churches and integrated auxiliaries was required by RFRA, nobody can deny that the implementing agencies were at least required to follow RFRA's commands in formulating their regulatory regime. And it is this requirement for RFRA compliance in the regulatory process that provides a second principle for assessing the shape of any resulting exemption. When the government grants a specific religious exemption in its RFRA-governed rulemaking, it has to give a reason for the exemption that it provided. And this is crucial because, at the very least, the government's own reason for giving an exemption can provide courts a principle for assessing the line that the government has drawn between exempt and nonexempt entities.

The truth is that interest-group politics best explains the line drawn by the government. But interest-group appeasement is not an adequate rationale for the agencies to explain their action. So they said something else in the Federal Register, namely that exempt entities were more likely to employ co-religionists. That rationale, however, applies equally to petitioners, who enjoy the Title VII exemption to hire co-religionists, as Paul Clement argued in his rebuttal: "Their original justification for the line they drew, Justice Kennedy, was that the exempted organizations would be more likely to hire co-religionists and, therefore, less likely to have employees who would use the products. My clients equally enjoy the Title VII exemption which gives them the right to hire co-religionists so their original rationale applies equally to my clients. You have to draw a sensible line." 

Contrary to Professor Laycock, holding the government to its own rationale when it implements rules in accordance with RFRA by providing exemptions does not pose a mortal threat to specific religious exemptions. It protects against circumvention of RFRA itself.

Which brings me back to the opening question for this post: How avoid a 4-4 split? 

To state the obvious, a resolution in petitioners' favor would require at least one of the Hobby Lobby dissenters to join (at least as the outcome) with the four Justices that remain from the Hobby Lobby majority. Given how the government's case collapses once one recognizes the obvious mismatch between the scope of the regulatory exemption and the rationale given for it, the most likely candidates for voting in some way for petitioners are Justice Kagan and Justice Breyer. Their pre-judicial experience with legislation and rulemaking positions them to best appreciate how it has resulted that government lawyers have found themselves stuck defending as legally justified line-drawing that was politically motivated. And as judges, both Breyer and Kagan appreciate how judicial oversight of the administrative process can sniff out the effects of political influence that is insufficiently tethered to the even-handed advancement of actual government interests. 

Neither Justice Breyer nor Justice Kagan nor any of the other Justices needs to draw up once-and-for-all criteria for identifying inappropriately gerrymandered religious exemptions. The Justices need only hold the government to its expressed rationale in the administrative record for why it drew the lines that it did. 

When RFRA intersects with rulemaking, judges are not RFRA's front-line enforcers. They are, instead, a refuge for religious exercise that is protected by RFRA but that is subordinated to interest-group politics in the administrative process. One workable way to make RFRA operate as intended is for the judiciary to hold the government to its own rationale for the regulatory lines it has drawn.