BREAKING: Over four dissents, 10th Circuit denies en banc hearing in Guarantee Clause case

This post has been updated.

The Tenth Circuit has denied the petition for rehearing en banc in Kerr v. Hickenlooper, the case that found the Guarantee Clause justiciable. The PDF is here. Four judges dissented in three opinions. Rick Hasen calls it "potentially a huge case."

I wrote about this case in JURIST last March, and I've blogged about the case, the Tenth Circuit's decision, and the en banc petition. It inspired Elizabeth Price Foley and David Rivkin to write that it may invigorate legal challenges to the scope of President Obama's executive power, carried out at the moment by Speaker of the House John Boehner. Michael Ramsay had two posts earlier about the issue, too.

Briefly, Colorado voters in 1992 passed a Taxpayer Bill of Rights that requires all tax increases be approved by a popular vote of the people. Some legislators sued, claiming that the law deprived them of their legislative power. The district court, affirmed by the Tenth Circuit, found that the parties had standing to sue and that the Guarantee Clause claim was justiciable, and that the case should go to trial.

Judges Hartz, Tymkovich, Gorsuch and Holmes all voted for rehearing--all four of George W. Bush's nominees to the Tenth Circuit. They penned three dissents.

Judge Hartz emphasized that the Supreme Court's decision in Pacific States Telephone & Telegraph Company v. Oregon was essentially indistinguishable, and that existing Court precedent finds the Guarantee Clause nonjusticiable. He writes, "But I am at a loss to find a principled basis on which to hold that the challenge in Pacific States was a political question while the challenge here is not." He explained that some, like Professor Lawrence Tribe, have disputed the validity of that case, but it is precedent that binds the Tenth Circuit.

Judge Tymkovich, joined by Judge Holmes, emphasized that the doctrine of legislative standing and the nonjusticiability of the Guarantee Clause were important issues that the panel got wrong. He explains, "The net result of the panel's decision ratifying standing is that just about any policy provision codified in the state constitution would be subject to legislative standing and attack on the theory of vote dilution"--including marijuana laws, school funding, casino gambling proceeds, and so on.

Judge Gorsuch had a different, fundamental problem:

Where are the judicially manageable standards for deciding this case? The burden of showing such standards exist usually presents a plaintiff with little trouble. Most cases in federal court — whether arising under congressional legislation or the common law or sounding in equity — come with ample principles and precedents for us to apply in a reasoned way, even if those principles and precedents don’t always dictate a single right answer. But in our case the plaintiffs make a rather novel claim: they contend that Colorado’s government is not a republican one — and so violates the Guarantee Clause — because tax increases proposed by the legislature must also be approved by the public. Where are the legal principles for deciding a claim like that?

Where are the legal principles for deciding a claim like that? The plaintiffs don’t say. They don’t suggest, for example, that the Clause requires all decisions about legislation to be made by elected representatives rather than the public. Neither do they contend that the Clause is offended only when all legislative decisions are made by direct democracy. If the Constitution could be said to contain one or the other of these rules — either forbidding any experiment with direct democracy or forbidding only the total loss of a representative legislature — we might have a principled basis for deciding the case. The former rule of decision might require judgment for the plaintiffs; the latter, for the defendants. But the plaintiffs in our case disclaim either such standard. They seem to acknowledge that some direct democracy is consistent with republican government, insisting only and instead that the kind here runs afoul of the Constitution.
And this is where we run into trouble. To date, the plaintiffs have declined to advance any test for determining when a state constitutional provision requiring direct democracy on one subject (here, taxes) does or doesn’t offend the Clause. No doubt, the task the plaintiffs face is a formidable one: they enter a field in which the Supreme Court has already dismissed for lack of judicially manageable standards a case challenging a state constitutional provision that allowed citizens to overturn by direct vote any state legislative enactment (not just enactments raising taxes). The plaintiffs enter a field, too, where the Supreme Court has more recently chosen to derive a multi-part justiciability test from its preexisting Guarantee Clause jurisprudence — in the process expressly reaffirming the idea that the Clause lacks judicially manageable standards for cases like ours.

The case seems likely to head to the Supreme Court. Whether it's the best vehicle to address the Guarantee Clause is another question--there's still the legislative standing issue that needs to be surmounted. But the case, as it stands, leaves much litigation to the imagination of enterprising legislators.

Paul Clement enters pending Arizona redistricting litigation

I've previously blogged about what the Constitution means when it uses the word "legislature" in the context of the Times, Places and Manner Clause, and the Arizona state legislature's challenge to the ballot proposition that shifted the authority to draw congressional districts from the legislature to an independent commission. A three-judge panel rejected the Arizona state legislature's argument by a 2-1 vote.

Yesterday, the Arizona state legislature filed its reply brief (available via Scribd). Of note: former United States Solicitor General Paul Clement of Bancroft PLLC is now the counsel of record. Bringing in someone of his caliber suggests an increase in the stakes--and perhaps even an increase in the likelihood the Supreme Court will consider the merits of the case.

Justin Levitt's All About Redistricting, Ballot Access News, and SCOTUSBlog all have some coverage of the pending Arizona State Legislature v. Arizona Independent Redistricting Commission litigation. The Supreme Court will likely decide in late September whether to hear the case.

Extraterrestrial exposure quarantine laws and Apollo 11

President Richard Nixon greets Apollo 11 astronauts Neil Armstrong, Michael Collins, and Buzz Aldrin during their quarantine, July 24, 1969, via NASA.

This month marks the 45th anniversary of the Apollo 11 mission, the first manned lunar landing. But less discussed about this historical incident is the quarantine that took place after the astronauts landed.

The astronauts were quarantined from their splashdown on July 24, 1969 until their release on the evening of August 10--18 days of isolation to ensure that they did not bring back any contaminants from the moon.

The quarantine procedures were set forth in 14 C.F.R. § 1211 (now long since amended) in a part entitled "Extraterrestrial Exposure." The scope of the regulation:

This part establishes: (a) NASA policy, responsibility and authority to guard the Earth against any harmful contamination or adverse changes in its environment resulting from personnel, spacecraft and other property returning to the Earth after landing on or coming within the atmospheric envelope of a celestial body; and (b) security requirements, restrictions and safeguards that are necessary in the interest of national security.

It authorizes NASA to establish quarantine procedures and standards to evaluate who should be quarantined and when it is safe to release a person from quarantine.

The regulation was filed on July 15, 1969 (45 years ago today), and appeared in the Federal Register at 34 Fed. Reg. 11975 on July 16, 1969--the day of the Apollo 11 launch. It's perhaps no surprise, then, that it includes this effective date:

Effective date. In light of the Apollo 11 space mission and the need to guard the Earth against extraterrestrial contamination, it is hereby determined that compliance with section 553 of Title 5 of the United States Code is impracticable and contrary to the public interest; therefore, the provisions of this Part 1211 are effective upon publication in the FEDERAL REGISTER.

You can read the entire regulation here, via Scribd.

 

Wigmore critiques judges for failing to read legal scholarship

Following up on a couple of recent critiques of the legal academy, here's what John Henry Wigmore had to say about legal scholarship in his treatise on evidence, written in 1915, in which he laments the shortcomings of judicial opinions (available via Google Books):

1. A first shortcoming to be noted is the lack of acquaintance with legal science. By “legal science” is meant all that is above, between, and behind the particular rules and precedents,—the system of legal knowledge,— that which distinguishes the architect from the carpenter. In an administrator of the law, one's equipment as a scientist may be in general denoted by one's attainments in (a) legal history, (b) legal philosophy and jurisprudence, (c) sound discrimination of the best sources of knowledge.

(a) Acquaintance with legal history is almost totally lacking. There are now ample modern sources for a knowledge of the history of the great principles of our law. They are unknown to our judges. The citations of Pollock and Maitland’s History since its appearance in 1895 could be numbered on the fingers of both hands. There exist now plenteous other standard authorities. But whenever there is an expounding of history, Blackstone suffices. For the judiciary's purposes, the world stopped still with him.

(b) The philosophy and jurisprudence of the law are unknown. Austin, Salmond, Holland, Amos, Sidgwick, Spencer, Terry, Gray, might as well not have written. To be sure, Anglo-American legal science itself has, until very recently, covered formally but a part of the field, chiefly the so-called analytical jurisprudence; but even this has suffered “the long divorce of steel” from the law, so far as judicial opinions reveal.

(c) There is no discrimination in the use of the expository authorities. Such a discrimination is the mark of a sound legal education and a correct scholarly standard. But, in the judicial opinions, the superficial products of hasty hack-writers, callow compilers, and anonymous editors, are given equal consideration with the weightiest names of true science. Obviously, any printed pages bound in law-buckram and well advertised or gratuitously presented constitute authority fit to guide the Courts.

Note, however, that it must be bound: for if it is in periodical form, it is ignored. For ten and twenty years past there have been at the service of the profession some half a dozen legal periodicals, publishing the weightiest critiques of current legal problems. There is nothing in judicial opinion to show that these articles have ever been read; apparently their great labor and acute skill have been wasted on the judges.[n.1] The article by Louis Brandeis and S. D. Warren on “The Right of Privacy” (published in the Harvard Law Review some twenty-five years ago) is the most notable of the rare exceptions discoverable.

[n.1]: And when occasionally they are read, and used, they are studiously not cited. A notable example of this was recently related to the writer, by one who had it directly from a chief justice.

How state court clerkship opportunities affect legal employment

California state courts do not offer clerkships to new law school graduates. And that decision affects the employment outcomes of graduates of California law schools.

Federal clerkships have been examined at great length (here and elsewhere). State court clerkships, however, remained relatively underexamined. And they are a source of significant volatility in comparing employment outcomes of graduates.

It's a crude general statement to say that law students tend to practice in the state in which their law school is located. I looked at how many law school graduates came from each state's law schools in 2013. (Alaska has no law school.) I then looked at how many of those graduates obtained state court clerkships in the reported ABA employment statistics. Lacking more granular data, it was a rough proxy--graduates, after all, may clerk in another state rather than the state of their law school. (For more details, see the bottom of this post.)

Here's a map (courtesy of Choropleth.us) of how many law school graduates from each state's law schools obtained state court clerkships, with figures in a table below:

State St. Clerks St. Grads Pct.
New Jersey 273 855 31.9%
South Dakota 14 71 19.7%
Hawaii 20 104 19.2%
Montana 15 81 18.5%
Nevada 23 132 17.4%
North Dakota 12 74 16.2%
Maryland 95 602 15.8%
Delaware 44 279 15.8%
Minnesota 121 942 12.8%
Idaho 13 117 11.1%
South Carolina 49 442 11.1%
New Mexico 12 114 10.5%
Vermont 21 200 10.5%
Colorado 46 444 10.4%
Utah 26 292 8.9%
Oregon 45 524 8.6%
Pennsylvania 140 1700 8.2%
Rhode Island 14 175 8.0%
Iowa 25 328 7.6%
Maine 6 96 6.3%
Kentucky 25 421 5.9%
Virginia 85 1440 5.9%
Washington 38 655 5.8%
Arizona 36 630 5.7%
Louisiana 52 924 5.6%
Mississippi 20 377 5.3%
Wyoming 4 76 5.3%
District of Columbia 113 2211 5.1%
West Virginia 6 130 4.6%
Connecticut 24 538 4.5%
Nationwide 2044 46116 4.5%
Massachusetts 100 2384 4.2%
Indiana 31 831 3.7%
Alabama 15 421 3.6%
North Carolina 46 1424 3.2%
Wisconsin 15 487 3.1%
Georgia 34 1112 3.1%
Missouri 27 885 3.1%
Tennessee 15 497 3.0%
Kansas 9 324 2.8%
Michigan 54 2228 2.4%
New York 113 5009 2.3%
New Hampshire 2 107 1.9%
Nebraska 4 249 1.6%
Texas 30 2323 1.3%
Ohio 19 1476 1.3%
Illinois 29 2274 1.3%
Arkansas 3 275 1.1%
Florida 34 3185 1.1%
California 46 5185 0.9%
Oklahoma 1 466 0.2%
Alaska 0 0 0.0%

For most of the top few states (e.g., Hawaii, Montana, Nevada, North Dakota, and South Dakota) have similar characteristics: one in-state school, a relatively insular market, and small law schools. Those schools each send a handful of their graduates to clerk in their states' courts--at least, it's probably a good guess, despite the lack of more granular data, that they're clerking in their home state.

A state like New Jersey is an anomaly. It has a robust state court clerkships system designed specifically for recent law graduates. Its website boasts 480 one-year positions. So it's probably no surprise that New Jersey-based law schools channel an extremely high number of graduates into state court clerkships.

Other states are not so fortunate--California among them, as it sits near the bottom of the list.

Here are the numbers as a percentage of full-time, long-term, bar passage-required jobs. (As a note, even though these positions are often only one year, they are still considered "long-term.")

State St. Clerks FTLT BPR Pct.
New Jersey 273 539 50.6%
Hawaii 20 56 35.7%
Delaware 44 132 33.3%
Maryland 95 290 32.8%
South Dakota 14 44 31.8%
Nevada 23 84 27.4%
North Dakota 12 44 27.3%
Montana 15 56 26.8%
Minnesota 121 538 22.5%
Vermont 21 109 19.3%
Rhode Island 14 73 19.2%
South Carolina 49 269 18.2%
Idaho 13 73 17.8%
Colorado 46 273 16.8%
Oregon 45 296 15.2%
Maine 6 41 14.6%
New Mexico 12 84 14.3%
Utah 26 187 13.9%
Pennsylvania 140 1012 13.8%
Louisiana 52 464 11.2%
Iowa 25 229 10.9%
Arizona 36 338 10.7%
Washington 38 364 10.4%
Kentucky 25 244 10.2%
Virginia 85 965 8.8%
Mississippi 20 230 8.7%
Connecticut 24 290 8.3%
West Virginia 6 75 8.0%
Wyoming 4 51 7.8%
District of Columbia 113 1441 7.8%
Nationwide 2044 26539 7.7%
Massachusetts 100 1345 7.4%
Indiana 31 477 6.5%
North Carolina 46 754 6.1%
Michigan 54 915 5.9%
Alabama 15 272 5.5%
Wisconsin 15 279 5.4%
Missouri 27 523 5.2%
Georgia 34 724 4.7%
Kansas 9 206 4.4%
Tennessee 15 363 4.1%
New York 113 3153 3.6%
New Hampshire 2 74 2.7%
Nebraska 4 151 2.6%
Ohio 19 818 2.3%
Florida 34 1653 2.1%
Illinois 29 1413 2.1%
Texas 30 1506 2.0%
Arkansas 3 163 1.8%
California 46 2557 1.8%
Oklahoma 1 302 0.3%
Alaska 0 0 0.0%

Now, of course, if California courts began offering robust clerkships opportunities for graduates, it might simply be that graduates who otherwise would have pursued other job opportunities would instead take a state court clerkship first. But, this data, I think, does show that regional employment opportunities greatly affect the short-term legal employment outcomes of graduates. (And I imagine many will draw a variety of conclusions from this data--but, the primary purpose of this post is to provide the data.)

Methodology note: A few schools do distort the picture for a few states (like Yale in Connecticut sends relatively few of its graduates into state court clerkships). So I thought I'd define each school's "home market" as the state where the school sent the largest percentage of its graduates. The only schools that had a percentage difference is at least one-half of one percentage point were Pennsylvania, Kentucky, North Carolina, and Connecticut--and the greatest of these was Connecticut at a 2.6-point difference. These were too small for me to decide to use this metric--particularly because the state where the school sends the largest percentage of its students may change from year to year, which would make future comparisons across years more difficult.

Looking for the Constitution in Rand Paul's proposed felon voter law

Last month, Senator Rand Paul of Kentucky proposed a federal law that would guarantee the right of ex-felons to vote in federal elections. The text of the bill, S.B. 2550, has just been released.

It's just missing one small things: a constitutional basis for the federal government to enact such a law.

A few months ago, a group of senators, led by Senator Ben Cardin, introduced S.B. 2235, the Democracy Restoration Act, that would do a similar thing.

But what, exactly, is the constitutional basis for Congress extending the right to vote to ex-felons in federal elections?

It isn't, as Section 2(2) of Mr. Cardin's bill says, the Times, Places and Manner Clause, which Arizona v. Inter Tribal Council expressly notes precludes federal authority over voter qualifications (and, indeed, apparently killed Oregon v. Mitchell in the process regarding federal power over voter qualifications in federal elections).

Section 2(3) of Mr. Cardin's bill cites "[b]asic constitutional principles of fairness and equal protection," which is not exactly a basis for legislative authority. The third sentence of the section cites the 13th, 14th, 15th, 24th, and 26th amendments empowering "Congress to enact measures to protect the right to vote in Federal [ed: this power also extends to state] elections," which is true, but does not necessarily (except, see below) empower Congress to enforce qualifications regarding felon status. And the third sentence of the section cites the 8th Amendment's ban on cruel and unusual punishments, which is certainly correct, but, alas, does not empower of Congress.

Section 2(4)(C) or Mr. Cardin's bill notes that felon disenfranchisement law "disproportionately impact racial and ethnic minorities," (see also Section 2(10)-(11)), which is certainly the case--the harder question, under existing Supreme Court jurisprudence, is whether a racially disparate impact is a sufficient basis for the exercise of congressional power to expand voter qualifications under the Reconstruction Amendments--which, I think, is a great question, and would likely fracture the majority that wrote the statements in Inter Tribal regarding the congressional power over voter qualifications.

So that's, I think, the best possible constitutional hook for Mr. Cardin's bill.

Mr. Cardin's bill would enfranchise all ex-felons, violent, non-violent, and those who convicted of an election-related felony.

Mr. Paul's bill does something different.

First, Mr. Paul's bill extends only to "non-violent" ex-felons, "non-violent" meaning crimes that defined as crimes of violence under 18 U.S.C. § 16 and analogous state laws.

Second, Mr. Paul's bill excludes felons serving a term in prison from the scope of his bill, and those serving a term of probation if it's less than one year (or the first year of a longer probation term). Mr. Cardin's bill extends to enfranchise those who are serving a term of probation.

Third, Mr. Paul's bill includes no mention of a constitutional basis for enacting this law.

Given Mr. Paul's abiding concern over the scope of federal authority in other areas, I found the complete lack of any constitutional hook as a slight surprise.

Perhaps Mr. Paul would rely on similar constitutional bases as Mr. Cardin, but he would run into some of the same problems. At best--in my own understanding of the Constitution's authority granted to the federal government--he might be able to argue that the disparate impact of felon voting laws on racial minorities would authorize Congress to enact this law, pursuant to its power under the Reconstruction Amendments.

But that constitutional claim is not made explicitly. And we are left merely to guess.

Portions of this post originally appeared in emails sent to the Election Law listserv.

Law school applicants, matriculants, and employment outcomes - in one chart

Occasionally, to me, at least, the facts and figures about law school enrollment and employment outcomes tend to blur. So I created a visualization of the current situation.

This chart combines LSAC data and ABA employment data for the law school classes of 2011 to 2017. (The ABA employment data for the Class of 2010 is not comparable to its later data sets.)

The top light blue slashed bars represent the total applicants to law school in that applicant cycle. For example, for the Class of 2011, there were around 82,000 applicants in the 2007-2008 cycle.

The dark blue slashed bars represent the total matriculants to law schools each year. For example, for the Class of 2011, there were around 49,400 matriculants beginning law school in the fall of 2008.

The five solid bars underneath represent the employment statistics of that year's graduating class, as reported in the employment data 9 months from graduation. For the Class of 2011, there were 43,735 graduates whose employment was reported as of February 15, 2012.

(The margin between matriculants and graduates reflects a few losses. First, I removed graduate statistics of the three schools in Puerto Rico, which amount to a few hundred graduates each year. Second, those who dropped out, or who were dismissed, are not included among graduates. Third, there's some lag in data for students in joint-degree or part-time programs, and they would not be included in data for matriculants three years after entering a program.)

The red solid bars represent unemployed (whether seeking or not seeking employment) and those whose employment status is unknown.

The orange bars represent part-time employed, short-term employed, any employed in professional or nonprofessional positions, those whose employer is unknown, and those pursuing an additional degree.

The light green bars represent those in full-time, long-term, JD advantage positions, whether funded by the school or not.

The medium green bars represent those in full-time, long-term, bar passage required positions funded by the school. (The ABA data for the Class of 2011 does not separately break out this data.)

The dark green bars represent those in full-time, long-term, bar passage required positions not funded by the school.

Applicants for the Class of 2017 are estimated using the most recent LSAC data.

Did Ginsburg move Kennedy to narrow Alito's Hobby Lobby opinion?

(The contents of this post arose from close readings of the case and discussions with several folks--my thanks for inspiring the examination.)

Justice Alito's majority opinion in Burwell v. Hobby Lobby (PDF) includes two extended analyses that ultimately read as dicta, because the majority opinion refuses to address the issue--and they are both issues from which Justice Kennedy's concurring opinion appears to distance itself. Further, Justice Kennedy's concurring opinion appears to be a direct response to Justice Ginsburg's dissent. So it may be worth asking the question: did Justice Alito once have a much broader opinion, one that was later restrained in two aspects because Justice Kennedy refused to join them after reading Justice Ginsburg's dissent?

Compelling Government Interest

Here's how Justice Alito's majority opinion addresses the compelling government interest (with some citations omitted or abbreviated):

HHS asserts that the contraceptive mandate serves a variety of important interests, but many of these are couched in very broad terms, such as promoting “public health” and “gender equality.” RFRA, however, contemplates a “more focused” inquiry: It “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” O Centro. This requires us to “loo[k] beyond broadly formulated interests” and to “scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants”—in other words, to look to the marginal interest in enforcing the contraceptive mandate in these cases. O Centro.
In addition to asserting these very broadly framed interests, HHS maintains that the mandate serves a compelling interest in ensuring that all women have access to all FDA-approved contraceptives without cost sharing. Under our cases, women (and men) have a constitutional right to obtain contraceptives, see Griswold v. Connecticut, and HHS tells us that “[s]tudies have demonstrated that even moderate copayments for preventive services can deter patients from receiving those services.”
The objecting parties contend that HHS has not shown that the mandate serves a compelling government interest, and it is arguable that there are features of ACA that support that view. As we have noted, many employees—those covered by grandfathered plans and those who work for employers with fewer than 50 employees—may have nocontraceptive coverage without cost sharing at all.
HHS responds that many legal requirements have exceptions and the existence of exceptions does not in itself indicate that the principal interest served by a law is not compelling. Even a compelling interest may be outweighed in some circumstances by another even weightier consideration. In these cases, however, the interest served by one of the biggest exceptions, the exception for grandfathered plans, is simply the interest of employers in avoiding the inconvenience of amending an existing plan. Grandfathered plans are required “to comply with a subset of the Affordable Care Act’s health reform provisions” that provide what HHS has described as “particularly significant protections.” But the contraceptive mandate is expressly excluded from this subset.
We find it unnecessary to adjudicate this issue.

Well, that's an unusual conclusion! First, a brief note on Justice Alito's history on this issue: when it comes to asserting a "compelling government interest," Justice Alito has been no friend of the government when it has found the ability to carve out exceptions for some reasons, but not religious reasons.

Consider the "police-beard case" he decided on the Third Circuit. The government asserted a compelling interest in having Muslims shave their beards to serve on a municipal police force. But the government had carved out a medical exception to its beard policy. Justice Alito found that there was no compelling government interest where there had been some non-religious exceptions granted.

That's the logic much of this lengthy excerpt assumes. The government has created exceptions to its policy; that, to Justice Alito, seems like thin gruel as a basis for the government to turn around and assert that it really does have a compelling interest when it comes to religious exemptions to its policy. He emphasizes that the "interest" is not just generic ("women's health," etc.), but precise, citing O Centro.

But, curiously, Justice Alito, after several paragraphs of suggestively weighing against the government, turns to say that the Court need not decide the issue.

Justice Kennedy, however, appears to reject any compelling government interest.

As to RFRA’s first requirement, the Department of Health and Human Services (HHS) makes the case that the mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees, coverage that is significantly more costly than for a male employee. There are many medical conditions for which pregnancy is contraindicated. It is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.

Justice Kennedy, then, seems to reject all of the points raised arguendo (and in dicta) by Justice Alito--he does not construe "compelling government interest" narrowly, and he does not view the government's granting of some non-religious exemptions as fatal to a compelling government interest in its refusal to grant religious exemptions.

But Justice Ginsburg notes in her dissent (which Justice Kennedy characterizes as "powerful"):

Perhaps the gravity of the interests at stake has led the Court to assume, for purposes of its RFRA analysis, that the compelling interest criterion is met in these cases. [Footnote 23: Although the Court’s opinion makes this assumption grudgingly, one Member of the majority recognizes, without reservation, that “the [contraceptive coverage] mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees.”]
...
Stepping back from its assumption that compelling interests support the contraceptive coverage requirement, the Court notes that small employers and grandfathered plans are not subject to the requirement. If there is a compelling interest in contraceptive coverage, the Court suggests, Congress would not have created these exclusions.
Federal statutes often include exemptions for small employers, and such provisions have never been held to undermine the interests served by these statutes. See, e.g., (FMLA, ADEA, ADA, and Title VII).
The ACA’s grandfathering provision, allows a phasing-in period for compliance with a number of the Act’s requirements (not just the contraceptive coverage or other preventive services provisions). Once specified changes are made, grandfathered status ceases. Hobby Lobby’s own situation is illustrative. By the time this litigation commenced, Hobby Lobby did not have grandfathered status. Asked why by the District Court, Hobby Lobby’s counsel explained that the “grandfathering requirements mean that you can’t make a whole menu of changes to your plan that involve things like the amount of co-pays, the amount of coinsurance, deductibles, that sort of thing.” Counsel acknowledged that, “just because of economic realities, our plan has to shift over time. I mean, insurance plans, as everyone knows, shif[t] over time.” The percentage of employees in grandfathered plans is steadily declining, having dropped from 56% in 2011 to 48% in 2012 to 36% in 2013. In short, far from ranking as a categorical exemption, the grandfathering provision is “temporary, intended to be a means for gradually transitioning employers into mandatory coverage.”

So, too, why does Justice Ginsburg exert so many paragraphs to refuting an argument that the majority raises arguendo and ultimately assumes without deciding? And why relegate the tip to Justice Kennedy in a quick footnote after speculating what "[p]erhaps" motivated the majority?

Least Restrictive Means

Justice Alito's opinion similarly opines at length that the least restrictive means would be government purchase of the contraceptives in dispute:

The least-restrictive-means standard is exceptionally demanding, see City of Boerne, and it is not satisfied here. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties in these cases. See [RFRA] (requiring the Government to “demonstrat[e] that application of [a substantial] burden to the person . . . is the least restrictive means of furthering [a] compelling governmental interest” (emphasis added)).
The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown that this is not a viable alternative. HHS has not provided any estimate of the average cost per employee of providing access to these contraceptives, two of which, according to the FDA,are designed primarily for emergency use. Nor has HHS provided any statistics regarding the number of employees who might be affected because they work for corporations like Hobby Lobby, Conestoga, and Mardel. Nor has HHS told us that it is unable to provide such statistics. It seems likely,however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. According to one of the Congressional Budget Office’s most recent forecasts, ACA’s insurance coverage provisions will cost the Federal Government more than $1.3 trillion through the next decade. If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this important goal.
HHS contends that RFRA does not permit us to take this option into account because “RFRA cannot be used to require creation of entirely new programs.” [Footnote 37: here the Court examines burdens that benefit third parties in a lengthy footnote. -ed] But we see nothing in RFRA that supports this argument, and drawing the line between the “creation of an entirely new program” and the modification of an existing program (which RFRA surely allows) would be fraught with problems. We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.
In the end, however, we need not rely on the option of a new, government-funded program in order to conclude that the HHS regulations fail the least-restrictive-means test.

Another curious conclusion! Why not? Justice Alito's opinion continues:

HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections. Under that accommodation, the organization can self certify that it opposes providing coverage for particular contraceptive services. If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan” and “[p]rovide separate payments for any contraceptive services required to be covered” without imposing “any cost-sharing requirements . . . on the eligible organization, the group health plan, or plan participants or beneficiaries.”
We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims. [Footnote 39: the Court notes that the Little Sisters of the Poor case challenges this accommodation in a separate RFRA claim. -ed] At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.

Note first that this conclusion on "least restrictive means" leaves open a question--the means may still violate RFRA for other claims! So, the stronger basis for the majority's opinion--the one that would emphatically not result in any religious objections--is set aside in favor of the potentially more problematic option (in the majority's own terms).

Second, consider what Paul Clement argued at oral argument (PDF) in response to a question from Justice Sotomayor:

JUSTICE SOTOMAYOR: Will your clients claim that filling out the form, if you're saying they would claim an exemption like the churches have already?
MR. CLEMENT: We haven't been offered that accommodation, so we haven't had to decide what kind of objection, if any, we would make to that. But it's important to recognize that as I understand that litigation, the objection is not to the fact that the insurance or the provider pays for the contraception coverage. The whole debate is about how much complicity there has to be from the employer in order to trigger that coverage. And whatever the answer is for Little Sisters of the Poor, presumably you can extend the same thing to my clients and there wouldn't be a problem with that.

So because of the narrow objection of Hobby Lobby in this case--at least as articulated by their counsel--the bigger problem of the self certify provision is reserved for another day. (But, it is curious that Justice Alito did not cite to this concession at oral argument.)

Justice Kennedy praises this result:

But the Government has not made the second showing required by RFRA, that the means it uses to regulate is the least restrictive way to further its interest. As the Court’s opinion explains, the record in these cases shows that there is an existing, recognized, workable, and already-implemented framework to provide coverage. That framework is one that HHS has itself devised, that the plaintiffs have not criticized with a specific objection that has been considered in detail by the courts in this litigation, and that is less restrictive than the means challenged by the plaintiffs in these cases.
The means the Government chose is the imposition of a direct mandate on the employers in these cases. But in other instances the Government has allowed the same contraception coverage in issue here to be provided to employees of nonprofit religious organizations, as an accommodation to the religious objections of those entities. The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it. That accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs.
On this record and as explained by the Court, the Government has not met its burden of showing that it cannot accommodate the plaintiffs’ similar religious objections under this established framework. RFRA is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation.

He then specifies why he would not reach the initial issue raised in Justice Alito's opinion, that of government subsidy:

The parties who were the plaintiffs in the District Courts argue that the Government could pay for the methods that are found objectionable. In discussing this alternative, the Court does not address whether the proper response to a legitimate claim for freedom in the health care arena is for the Government to create an additional program. The Court properly does not resolve whether one freedom should be protected by creating incentives for additional government constraints. In these cases, it is the Court’s understanding that an accommodation may be made to the employers without imposition of a whole new program or burden on the Government. As the Court makes clear, this is not a case where it can be established that it is difficult to accommodate the government’s interest, and in fact the mechanism for doing so is already in place.

It is an intriguing gloss on RFRA--the "least restrictive means," to Justice Kennedy, at least in these terms, suggests that the government may not have to pursue the truly least restrictive means, but, perhaps, a kind of balance of a not-very-restrictive means, so long as the cost is low (i.e., "without imposition of a whole new program or burden on the Government"). (Further, some have already speculated that his approval of this regime suggests he would not be inclined to favor challenges to the self certify framework.)

Justice Ginsburg, like Justice Alito, pursues the "government subsidy" line of argument at length before acknowledging it is merely dicta:

Then let the government pay (rather than the employees who do not share their employer’s faith), the Court suggests. “The most straightforward [alternative],” the Court asserts, “would be for the Government to assume the cost of providing . . . contraceptives . . . to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.” The ACA, however, requires coverage of preventive services through the existing employer-based system of health insurance “so that [employees] face minimal logistical and administrative obstacles.” Impeding women’s receipt of benefits “by requiring them to take steps to learn about, and to sign up for, a new [government funded and administered] health benefit” was scarcely what Congress contemplated. Moreover, Title X of the Public Health Service Act “is the nation’s only dedicated source of federal funding for safety net family planning services.”
“Safety net programs like Title X are not designed toabsorb the unmet needs of . . . insured individuals.” Note, too, that Congress declined to write into law thepreferential treatment Hobby Lobby and Conestoga describe as a less restrictive alternative.
And where is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection? Because the Court cannot easily answer that question, it proposes something else: Extension to commercial enterprises of the accommodation already afforded to nonprofit religion-based organizations. “At a minimum,” according to the Court, such an approach would not “impinge on [Hobby Lobby’s and Conestoga’s] religious belief.” I have already discussed the “special solicitude” generally accorded nonprofit religion-based organizations that exist to serve a community of believers, solicitude never before accorded to commercial enterprises comprising employees of diverse faiths.
Ultimately, the Court hedges on its proposal to align for-profit enterprises with nonprofit religion-based organizations. “We do not decide today whether [the] approach [the opinion advances] complies with RFRA for purposes of all religious claims.” Counsel for Hobby Lobby was similarly noncommittal. Asked at oral argument whether the Court-proposed alternative was acceptable, counsel responded: “We haven’t been offered that accommodation, so we haven’t had to decide what kind of objection, if any, we would make to that.” Tr. of Oral Arg. 86–87.

Again, the bulk of the examination is on the government subsidy means; the self certify issue is almost an afterthought.

--

Now, perhaps all of this is nothing. Perhaps the opinions were naturally written in this way. But given some of the ostensibly superfluous discussions on materials assumed away and not deemed essential to the Court's holdings, it's at least a plausible interpretation that Justice Ginsburg's first dissent moved Justice Kennedy to distance himself from two key portions of the majority's opinion, which then was modified to ensure that there were five outright votes on the salient issues in the case.

And it's very possible, then, that Justice Kennedy's concurring opinion was a part of a bargain to push the majority to bracket two broader issues (finding no compelling government interest because of other exemptions in the overall statutory scheme, and finding that a less restrictive alternative would not be a matter of pending litigation in other RFRA claims). And it's possible that he was driven to that view after Justice Ginsburg circulated her dissent.

So, is this post rampant speculation, or a plausible interpretation?