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Where was Justice Breyer in the Wheaton College fight? (Updated)

In granting Wheaton College an injunction against the contraception mandate, the Supreme Court issued an order, accompanied by a one-sentence concurrence by Justice Scalia “in the result,” and a lengthy dissent by Justice Sotomayor joined by Justices Ginsburg and Kagan.  Following its usual practice in such matters, there was no mention of how the other Justices voted, including Justice Breyer.  (Marty Lederman and I debate the effect of the order here and here.)

The dissent argued that the injunction was procedurally inappropriate and inconsistent with the Court’s very recent opinion in Hobby Lobby.  That decision was five to four.  The dissenters were the three dissenting Justices identified in Wheaton College, plus Justice Breyer.  That raises two questions:  did Justice Breyer join the Wheaton College majority; and if so, why?

I think that Justice Breyer did join the majority.  The Supreme Court’s order not only granted an injunction, but effectively issued an opinion explaining its reasoning and how the injunction would function.  I believe that the order could be issued in the name of the Court only if it was endorsed by a majority of the Justices.  We know that Justice Scalia did not join the order, but instead agreed only in the “result.”  I interpret that to mean that he agreed with the injunction, not the remainder of the discussion of how it would operate.  Otherwise, why would he not join the order in full?

If I am correct, that would mean that the order required a fifth vote for it to be issued in that form. By process of elimination – there are only five Justices not identified by name in the order – Justice Breyer must have joined the order.

The next question is, why did he not join the dissent?  Whether or not one agrees that the Wheaton College injunction is inconsistent with the Court’s decision in Hobby Lobby (and I personally do not), it is at least extremely unusual as a procedural matter.  Ordinarily, one would have guessed that Justice Breyer would dissent at least on that ground, because his dissenting vote in Hobby Lobby makes clear that he does not think that Wheaton College has a substantial religious liberty claim.  (UPDATE: Marty reminds me that Justice Breyer dissented from the Court’s prior order granting Wheaton College an administrative stay.)

But note that Justice Breyer accomplished much more by joining the majority than by dissenting.  Formally, Wheaton College sought and received an injunction.  But, as a practical matter, it got much less than it wanted because of the accompanying language in the order.  Wheaton wanted to be able to refrain from taking any step that would facilitate free contraception for its faculty or students.  But the Court’s order states unequivocally that the government can require Wheaton to provide it with notice of its religious affiliation and can on that basis ensure that the same coverage is provided.  In other words, the injunction merely frees Wheaton from filling out the government’s “Form 700,” but it still requires Wheaton to accomplish the same result by an arguably less onerous means.

If a majority of the Court had not agreed on that language, the state of the law in this case – and in countless other cases involving hundreds of religiously affiliated entities that would have been sure to follow – would have been extremely muddled.  Four Justices would have agreed on the middle-ground accommodation of requiring the entity to submit a statement to the government, four Justices would have dissented, and Justice Scalia would have concurred “in the result” (presumably because he thinks that the accommodation insufficiently protects the entity’s religious liberties).  At the very least, it would have been uncertain whether the government could require the entities to provide a document specifying their religious affiliation, which could be used to trigger contraception coverage.

UPDATE #2:  Inspired by a comment by Marty, note the following.  Ordinarily, the dilemma of the Court lacking a majority would be solved by combining votes.  Here, a four-Justice plurality would say that Wheaton College could still be required to make a certification to the government.  Then four dissenters would disagree with the injunction, but would say that they agree with the certification procedure.  There would effectively be eight votes providing clear guidance.  But importantly, the dissent refused to do that.  According to the dissent, the effect of the injunction was to deprive employees and students of contraception care, at the least by creating great administrative uncertainty.  So Justice Breyer would have been required to file his own separate dissent that affirmatively disagreed with Justice Sotomayor’s dissent and therefore dramatically undercut it.

To be clear, it is not for me to say why Justice Breyer joined the majority – providing a fifth vote – rather than the dissent.  But the consequence of him having done so seems to be that the press reported on a significant dissent from the order, while employees and students of religiously affiliated entities will still receive contraception coverage.  And that is the end result the Hobby Lobby dissenters emphatically hoped to see, if they could not prevail outright.

Recommended Citation: Tom Goldstein, Where was Justice Breyer in the Wheaton College fight? (Updated), SCOTUSblog (Jul. 6, 2014, 8:09 AM),