Will the Supreme Court Save Obamacare Again? Keep Your Eyes on Kennedy


When Chief Justice John Roberts cast the crucial vote in 2012 to uphold the Patient Protection and Affordable Care Act, he justified his decision as an act of judicial deference to the elected branches of government. Judging by today's oral arguments in Sebelius v. Hobby Lobby Stores Inc., which centered on Obamacare's mandate requiring most employers to provide birth control coverage to their employees, the chief justice is unlikely to repeat that deferential performance.

According to the Obama administration, for-profit corporations should never be permitted to raise religious objections to federal regulations. That includes Hobby Lobby, an arts-and-crafts retailer owned and operated by a family of evangelical Christians who object to providing access to four methods of contraception they deem equivalent to abortion.

Yet when Solicitor General Donald Verrilli attempted to make his case this morning, Roberts wasted little time in attacking the government's blanket standard. "Every court of appeal to have looked at the situation have held that corporations can bring racial discrimination claims as corporations," Robertts told Verrilli. "Does the government have a position on whether corporations have a race?" Roberts asked. Verrilli conceded that "corporations can bring those claims." So why should we view this case differently, Roberts' questioning plainly asked.

Liberal Justice Elena Kagan appeared to agree that the government's stance on for-profit corporations lacked a firm legal footing. You may be able to argue that a specific entity such as Hobby Lobby should not prevail on the merits, Kagan told Verrilli, but "I'm not sure I understand it as a threshold claim that this—that the claim is not recognizable at all."

To make matters worse for the government, Justice Stephen Breyer, another member of the Court's liberal wing, also seemed dubious. Building on a hypothetical scenario posed by Justice Samuel Alito, who asked about the religious liberties of "kosher and halal" slaughterhouse corporations, Breyer added, "take five Jewish or Muslim butchers, and what you're saying to them is if they choose to work under the corporate form," they have to abandon the Free Exercise Clause as a legal tool. "Looked at that way," Breyer said, "I don't think it matters whether they call themselves a corporation or whether they call themselves individuals."

But the justices appeared more closely divided along ideological lines when it came to the second part of the case, which asks whether the contraceptive mandate violates federal law by placing a substantial burden on Hobby Lobby's exercise of religion. Here the deciding vote is likely in the hands of Justice Anthony Kennedy, whose own questioning this morning revealed a certain degree of sympathy for each side. "The employee may not agree with the religious —religious beliefs of the employer," Kennedy observed at one point. "Does the religious beliefs just trump? Is that the way it works?"

Yet later in the proceedings Kennedy appeared equally concerned with the religious conscience of the employer. "Under your view," Kennedy told the solicitor general, a for-profit corporation "could be forced to pay for abortions…your reasoning would permit that."

If Kennedy holds to that latter view of the case, the contraceptive mandate may be in trouble.

A ruling in Sebelius v. Hobby Lobby is expected by June.