RFRA Sponsors’ Amici Curiae Brief in Hobby Lobby case

Several federal legislators who voted for the Religious Freedom Restoration Act of 1993 and continue to serve in the Senate or the House of Representatives filed an amici curiae brief in the Tenth Circuit earlier today. The lead amicus curiae is Senator Orrin G. Hatch, the principal Republican co-sponsor of RFRA.

I was pleased to have had the opportunity to work on the brief with superb lawyers not only here in Virginia (Matthew Fitzgerald and John Adams of McGuireWoods), but also in New Jersey (Brendan Walsh of PashmanStein) and Oklahoma (Andy Lester and Carrie Williams Vaughan of Lester, Loving & Davies). I will highlight various aspects of the brief in later posts, but for now I’ve posted the Statement of Interest and Summary of Argument below the fold.

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The limited scope of the Catholic Bishops’ amicus curiae briefs

By using the amicus curiae briefs of the United States Conference of Catholic Bishops to define the universe of Supreme Court cases in which the Catholic hierarchy has an interest, it is possible to reveal the areas of consonance and dissonance between a leading set of views about the preferred state of the law from the point of view of Catholic social teaching (namely the Bishops’ Conference’s views) and the actual state of the law as brought about by the Supreme Court. It is also possible, as the charts in prior posts illustrate (here and here), to assess the extent to which particular Justices have voted for parties supported by the Bishops’ Conference as amicus curiae.  But the Bishops’ Conference’s briefs should not be understood as presenting the Catholic position on the legal questions that they address. There is no single, correct “Catholic answer” to questions of constitutional law (or any questions of federal law, for that matter). There is, for example, a Catholic teaching about the morality of the death penalty. But there is no Catholic teaching about the meaning of the Eighth Amendment. There is, to pick another example, a Catholic teaching about the necessity for the Church to have the freedom to administer sacraments and to gather the People of God. But there is no Catholic teaching about the meaning of the Free Exercise Clause of the First Amendment. And so on. When bringing Catholic teaching to bear on questions of federal law, the Bishops’ Conference makes prudential, strategic, tactical, and legal judgments in deciding whether to file a brief and what to include in it.

Even while affirming that there is no single, correct “Catholic answer” to questions of federal law, it is important not to overemphasize this point. Catholic social teaching guides the Bishops’ Conference’s amicus briefs, and all of these briefs ask the Court to implement the insights of that teaching in some way. Moreover, it is difficult to imagine the Bishops’ Conference weighing in on the opposite side of the cases in which they file amicus curiae briefs. Take, for instance, Gonzales v. Oregon, which involved an interpretive rule issued by the Attorney General that prohibited the prescription of death-dealing drugs under federal law in certain circumstances even when state law explicitly permitted such prescriptions. As a potential amicus curiae, the Bishops’ Conference’s principal is whether to file or not; there is little doubt which side the Conference would support if it were to file.

Unlike potential amici, Catholic Justices do not have the option of sitting on the sidelines. In cases properly before them, their obligation is to render judgment. Moreover, in the course of adjudicating cases, the Justices develop broader jurisprudential commitments that influence how they approach cases–commitments that the Bishops’ Conference need not develop or adopt in a similar manner.

Gonzales v. Oregon, for example, presented both federalism and separation of powers issues about which Catholic social teaching has little to say in comparison with the ample resources for moral evaluation offered by the tradition. The Bishops’ Conference’s support of a national, one-size-fits-all approach to the particular medical and legal issues in Gonzales v. Oregon depended not only on Catholic teaching about what constitutes a “legitimate medical purpose,” but also prudential judgments about the distribution of power between the state and federal government. Those prudential judgments take on a different complexion when the relevant federal actor claiming authority to make legal judgments about medical practices, whether that be the Attorney General or the Secretary of HHS, is more hostile than sympathetic to the Bishops’ Conference’s considered moral judgments. For the Justices, by contrast, judgments about the distribution of regulatory power between the federal and state governments, and about the distribution of interpretive power between the executive and the judiciary, must be more legal than prudential. And they should, to the greatest extent possible, be consistent with the legal judgments those Justices would reach with respect to issues that have little, if nothing, to do with Catholic social teaching.

[Cross-posted at CLR Forum.]

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The Catholic Bishops in the Roberts Court: Track Record as Amicus Curiae

In the first six years of the Roberts Court (OT05-OT10), the United States Conference of Catholic Bishops filed seven amicus curiae briefs. Four dealt with religious liberty  (Gonzales v. O Centro Espirita Beneficiente Uniao de Vegetal, CLS v. Martinez, Arizona School Tuition Organization v. Winn, and Hosanna-Tabor v. EEOC), two addressed abortion (Ayotte v. Planned Parenthood and Gonzales v. Carhart), and one dealt with assisted suicide (Gonzales v. Oregon). The table below compares the Justices by whether they voted for the same party supported by the Bishops’ Conference as amicus curiae.

Justice Name	Agreement with Bishops’ Conference as Percentage of Cases	Agreement with Bishops’ Conference as Fraction of Cases
Chief Justice Roberts (Catholic)	100%	7/7
Justice Scalia (Catholic)	100%	7/7
Justice Thomas (Catholic)	100%	7/7
Justice Alito (Catholic)	100%	4/4
Justice Kennedy (Catholic)	71%	5/7
Justice Stevens	50%	2/4
Justice Souter	50%	2/4
Justice O’Connor	50%	1/2
Justice Ginsburg	43%	3/7
Justice Breyer	43%	3/7
Justice Sotomayor (Catholic)	33%	1/3
Justice Kagan	33%	1/3

These statistics reveal a stark division between the Catholic and the non-Catholic Justices, a division that is likely to shape up more and more as one between the Republican appointees (all Catholic) and the Democratic appointees (one of whom is Catholic). The three cases in which the party supported by the Bishops’ Conference garnered the votes of the non-Catholic Justices were all unanimous decisions (Hosanna-Tabor v. EEOC, Gonzales v. O Centro Espirita Beneficiente Uniao de Vegetal, and Ayotte v. Planned Parenthood). The party supported by the Bishops’ Conference did not attract the votes of a single non-Catholic Justice in any split decision.

As noted in connection with the earlier chart showing the same measure in the Rehnquist Court, the point of this measurement is not to demonstrate influence, but rather to define the universe of cases in which the Bishops have an interest in the outcome and to see how hospitable various Justices have been to the claims advanced by the parties supported by the Bishops’ Conference amicus curiae briefs.

[Cross-posted at CLR Forum.]

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The Catholic Bishops in the Rehnquist Court: Track Record as Amicus Curiae

By my count, the United States Conference of Catholic Bishops filed amicus curiae briefs in 22 cases during the Rehnquist Court. (For a spreadsheet showing USCCB amicus briefs and Justices’ votes for OT86-OT10, see here. Please let me know if the spreadsheet contains any errors.) Ten of the briefs dealt with religious liberty (encompassing statutory, Free Exercise, and Establishment Clause cases); six addressed abortion; three were about end-of-life issues; two involved the death penalty; and one addressed associational freedom. The chart below provides for crude comparisons among the Justices, placing them in an array of more or less agreement in their votes for the party (petitioner or respondent) supported by the USCCB’s amicus curiae briefs. Direct comparisons cannot be made among all the Justices due to the changing composition of the Court over this time period.

Justice Name	Agreement with Bishops’ Conference as Percentage of Cases	Agreement with Bishops’ Conference as Fraction of Cases
Justice White	100%	10/10
Justice Scalia (Catholic)	86%	19/22
Justice Kennedy (Catholic)	86%	18/21
Chief Justice Rehnquist	82%	18/22
Justice Thomas (Catholic)	79%	11/14
Justice O’Connor	77%	17/22
Justice Breyer	58%	7/12
Justice Souter	53%	8/15
Justice Brennan (Catholic)	43%	3/7
Justice Ginsburg	42%	5/12
Justice Stevens	36%	8/22
Justice Blackmun	20%	2/10
Justice Marshall	13%	1/8

The point of counting votes in this particular way is not to assess the influence of the Bishops’ Conference. It is highly doubtful that the Conference’s presence or absence as amicus curiae has had any effect on how the Justices voted. The point, instead, is to define the universe of cases in which the Bishops have an interest in the outcome and to see how hospitable various Justices have been to the claims advanced by the parties supported by the Bishops’ Conference amicus curiae briefs.

[Cross-posted at CLR Forum]

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Justice Brennan and Justice White from the Catholic Bishops’ point of view

During his time on the Rehnquist Court, Justice Brennan voted in seven cases in which the United States Conference of Catholic Bishops (the “USCCB” or “Bishops’ Conference”) filed an amicus curiae brief. He voted for the party supported by the Bishops’ Conference in three out of those seven cases. By contrast, during his time on the Rehnquist Court, Justice White voted in ten cases in which the USCCB filed an amicus curiae brief (the same seven as Justice Brennan, plus three more). He voted for the party support by the Bishops’ Conference in all ten of those cases.

The low level of agreement between Justice Brennan and the Bishops’ Conference is notable given that Justice Brennan was the last beneficiary of a so-called “Catholic seat” on the Supreme Court.  And Justice Brennan’s voting pattern presents an interesting contrast with Justice White’s.  The contrast is noteworthy because President Kennedy appointed White. As the country’s first (and thus far only) Catholic President, Kennedy could not politically afford to nominate a Catholic to the Supreme Court.  By contrast, Brennan’s Catholicism was an important factor in making him an attractive nominee for Eisenhower.  Thus, one reason that Brennan was appointed is that he was a Catholic, while one reason White was appointed is that he was not a Catholic.  Yet White ended up consistently voting with the Catholic bishops on the Rehnquist Court, while Justice Brennan had one of the lowest rates of agreement during the same time period.

There were five other Justices who voted in all ten cases in which the Bishops’ Conference filed an amicus curiae brief and in which Justice White voted: Chief Justice Rehnquist, Justice Blackmun, Justice Stevens, Justice O’Connor, and Justice Scalia. Rehnquist and Scalia joined White in voting for the party supported by the Bishops’ Conference in all ten of these cases. Justice O’Connor voted for that party in eight out of those ten cases, Justice Stevens in three, and Justice Blackmun in two. In the first several years of the Rehnquist Court, then, the three Justices with the best track record from the point of view of the Bishops’ Conference consisted of two Protestants (Chief Justice Rehnquist and Justice White) and one Catholic (Justice Scalia).

[Cross-posted at CLR Forum]

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Two related non-merits issues to look at in today’s ACA filings

According to the Supreme Court’s December 8 briefing schedule in the challenges to the Affordable Care Act, the opening briefs are due today with respect to everything but the Medicaid issue. Here are a two related non-merits issues to look at in today’s filings:

1. How does the NFIB’s brief address the standing of the individual plaintiffs? The Wall Street Journal reported back in December on the bankruptcy filing of Mary Brown, who was the only plaintiff that the government conceded had standing to challenge Section 5000A (the minimum essential coverage provision). Ms. Brown’s personal circumstances may render her eligible for an exemption from the penalty for non-compliance with the minimum essential coverage requirement in § 5000A. Earlier this week, the Wall Street Journal reported that the NFIB’s lawyers sought to add as individual plaintiffs two more NFIB members. This is an unusual move, and one that the challengers would not have taken without good reason. (That is not to go so far as to say that the additions should be viewed as an implicit concession about a lack of standing without the to-be-added plaintiffs, only that the lawyers viewed the downside of not seeking to add plaintiffs as higher than the downside of doing so.) In a letter filed with the Supreme Court disclosing Ms. Brown’s bankruptcy, the private plaintiffs said that they would explain in their opening brief why Ms. Brown still had standing. Today is the day they will make good on that promise.
2. How does the court-appointed amicus curiae address the Anti-Injunction Act issue? There are several arguments that Mr. Long can make, and it will be interesting to see his assessment of their relative strength by their positioning in the brief.

These two issues may look unrelated on their face, but there is a connection between the AIA issue and Ms. Brown’s standing. One of the arguments that the challengers have previously advanced is that they are challenging the requirement to have insurance but not the penalty for non-compliance. In their view, the mandate is a “free-standing legal requirement” while the penalty is a means of enforcing it. Presumably, this assertion about the internal separability of §5000A with respect to the mandate and the penalty will also be part of the argument for Ms. Brown’s standing. The argument would presumably be that, although Ms. Brown’s financial hardship exempts her from the penalty (under § 5000A(e)), she is still subject to the legal requirement to have minimum essential coverage.

I’m skeptical that these arguments resting on the internal separability of § 5000A succeed. But I will withhold judgment until I see the best presentation of these arguments in the challengers’ briefs.

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