Hello, and a Question About Hobby Lobby

Many thanks to the fine folks at Prawfsblawg for the invitation to guest-blog this month. I’ll start my stint by flagging a passage from the Hobby Lobby opinion that I’ve lately been scratching my head about. One of the questions at issue in Hobby Lobby was whether the government had “substantially burdened” the religious beliefs of the plaintiffs by requiring them to offer employer-provided health insurance plans that covered various methods of contraception. (The plaintiffs said “yes,” the government said “no”.) And on this question, several amici for the government advanced an argument that the government itself had not raised: The amici claimed that the plaintiffs could tolerably evade the contraceptive mandate by dropping their employees’ coverage and incurring a financial penalty instead. The argument, in other words, was that the penalty was small enough to make effectively available to the plaintiffs the option of not offering an employer-provided health care plan at all. And therefore, the amici continued, no “substantial burden” could result from rules applicable to plans that the plaintiffs were not in fact required to provide.

Anyway, my question concerns not so much the substance of this claim as it does the Court’s chosen means of addressing it. First and foremost, Justice Alito’s majority opinion observed that the government itself had never raised the claim, which in turn militated against any resolution of the issue by the Court. See id. at 2776 (“We do not generally entertain arguments that were not raised below and are not advanced in this Court by any party, and there are strong reasons to adhere to that practice in these cases.” (citations omitted)). Almost immediately thereafter, however, the Court went on to highlight various shortcomings in the argument itself. But how, you may wonder, did the Court manage to reconcile its stated refusal to reach the issue with its subsequent reaching of the issue? It did so by explaining that: “[E]ven if we were to reach this argument, we would find it unpersuasive.”

So, my question is this: What is the difference between saying (a) “We find this argument unpersuasive,” and (b) “Even if we were to reach this argument, we would find it unpersuasive”? The best I can come up with is something involving precedential effect; the latter statement, unlike the former, might more easily be dismissed as dicta in a later case, thus affording the Court a bit more flexibility in confronting a similar issue down the road. But even so, the statement still strikes me as unusual. I’m not aware of many cases in which the Court has consciously flagged a part of its opinion as non-binding dicta (normally, the “dicta” label gets applied after the fact, as a means of doing away with some difficult language from a prior opinion that a subsequent majority of Justices would rather not follow). And in any event, if the Justices really did find the argument unpersuasive, why were they reluctant to say so directly?

Anyway, I’m curious whether anyone has any thoughts on what the Court was up to here. I probably didn’t follow the Hobby Lobby litigation closely enough to offer an opinion on this language, but if I were to opine on it, I’d say it was confusing.