Now that the rush of the last few days is over, here are a couple more thoughts on the arguments.
1) The Courts generally apply a canon of “constitutional avoidance” when they can decide a case on multiple issues and purposely resolve the non-constitutional question, avoiding wrestling with the most difficult issues until it is necessary. The severability questions in this case presents a practical corollary to constitutional avoidance by letting the Court eliminate the law on only one constitutional ground rather than having to address the ways it is in conflict with other constitutional provisions as well. After all, the Supreme Court itself is holding several cases pending the outcome of this case, involving at least one challenging standing issue (the Commonwealth of Virginia case) and one Religious Freedom Restoration Act issue (the Seven-Sky v. Holder case). Additionally, there are cases wending their way through the district and appellate courts on a number of other challenging issues, most well-known of which are the cases bringing First Amendment challenges to the recent HHS regulations mandating contraception coverage. While this isn’t a traditional part of severability analysis, this might be a consideration if any other justices agree with Justice Sotomayor that the Court has “discretion” to simply pick a good policy outcome on that question.
2) My colleague Ammon Simon did a great job summing up the ways in which liberal justices engaged in policy-based, rather than legal, questioning during this week’s arguments. One more issue I’d like to highlight is the curious appearance during arguments of a case long thought dead: Lochner v. New York. This case itself has been reduced to a slur, and is not actually related to this litigation, as evidenced by the failure of any party to cite it in the briefs. General Verrilli brought it into the argument almost as a threat: Go down this road and you will be perceived to be one of those nasty Lochner-style judges. The chief justice dismissed this warning out of hand, explaining that Lochner’s focus on the reach of state power presents a very different question than the current question of the extent of federal power. But this attempted smear, coupled with the peculiar resort to a sentimental closing argument more suited to the campaign trail than the Supreme Court, marks yet another way in which the SG’s office has unfortunately reduced itself to a political rather than a legal institution in this case.