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Monday, February 02, 2015

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.

Posted by Michael Coenen on February 2, 2015 at 09:43 AM in Judicial Process, Religion | Permalink


For what it is worth, this formulation is very common in lower courts, and I think it's most often used to "cert proof" opinions, and, in the case of state criminal courts, to shield them against federal habeas. Perhaps Alito got in the habit of writing this way from his time on the Third Circuit? Or perhaps he just absorbed it during his years in practice. In any case, the move doesn't strike me as unusual at all, though I agree with you that its function in Supreme Court opinions particularly is a little more difficult to pin down.

Posted by: Josh Lee | Feb 2, 2015 8:24:54 PM

Richard - Thanks so much for your response--very helpful. I can certainly see the rhetorical appeal of such a move, so I think that's a perfectly plausible explanation for the argument's form. (Another possibility, maybe the discussion reflects some sort of compromise between different members of the majority who wanted to resolve the question in different ways?)

As to dicta v. holdings-in-the-alternative, I'm going to need to ponder that question some more. But were I to answer it now, I'd be inclined to say that while the distinction might make sense in some contexts, I have trouble seeing how it would work here. If Holding #1 is in fact "we decline to reach this issue," then doesn't Holding #1 necessarily imply that there cannot be a Holding #2 on the merits? Maybe I'm wrong, but I have generally understood a court's refusal to "reach" an issue as tantamount to a decision not to render a "holding" on the issue. And if that's true, then everything following the Court's stated refusal to confront the question would have to qualify as dicta rather than holding. But perhaps my understanding is too narrow?

Posted by: Michael | Feb 2, 2015 12:37:41 PM

Michael--Great to have you on Prawfs!

A couple thoughts. First, is the merits discussion dictum, as opposed to a holding in the alternative? In other words, perhaps the reasoning is: (i) this isn't presented so you can't win on this; (ii) even if it were presented, you still wouldn't win on this. (Perhaps you reject the supposed distinction between dicta and in-the-alternative holdings?)

Second, my sense is that the rhetorical point of one-two punches of the kind you describe is to degrade the underlying argument. If you start out by saying that nobody has actually presented the point, that can be taken as a reason to think that the point itself is a stretch or tacitly rejected by the parties. Then, having underscored the argument's marginal support in the litigation, the court can more confidently confront the rhetorically degraded argument on the merits. This kind of thing is especially attractive for the Supreme Court, because it is unlikely to issue a major decision while ignoring a major argument for the other side. Doing so would be like admitting that a better litigant might have flipped the outcome.

Posted by: Richard | Feb 2, 2015 11:50:10 AM

Oops, that should read 36,500 per person per year.

Posted by: N.D. | Feb 2, 2015 10:22:05 AM

Professor Coenen, The cases brought before the Court concern employers that desire to provide their employees with a Health Insurance Coverage Plan that does not include coverage for contraception. While the penalty for not providing Health Care Insurance Coverage at all, by dropping their employee's coverage, and incurring a financial penalty equivalent to the cost of Insurance Coverage has already been ruled to be, in essence, a fair tax, the fact is, The Court has failed to recognize that a fine of $100 per person per day, or $36,000 per person per year, for providing a Health Insurance Coverage Plan that does not include contraception coverage, is clearly a violation of the principle of proportionality and thus a violation of the Eighth Amendment, as well as the First.

Posted by: N.D. | Feb 2, 2015 10:18:00 AM

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