Bench Memos

Quick Review of Hobby Lobby Oral Argument

I didn’t attend this morning’s argument and will therefore reserve my own reading of the tea leaves until after I’ve reviewed the transcript. For what it’s worth, one person who did attend and who is very knowledgeable about the issues in the case (but who might suffer from an overly optimistic temperament) has given me his quick take. He sees a 6-3 victory for Hobby Lobby, with Kennedy and Breyer joining the conservatives on the bottom line. (Apparently, Breyer’s questions reflected his recognition that—as I discussed in this post—the accommodation that the Obama administration provided religious nonprofits is a less restrictive means—and that the HHS mandate therefore flunks RFRA.)

We shall see. I’d be very surprised and impressed if Breyer is willing to stand against the three women justices.  

Update: Another well-informed observer offers a similar assessment. The argument “went very well” for Hobby Lobby. He thinks that Hobby Lobby may win on the threshold issues (corporate exercise of religion, substantial burden) by a 7-2 margin and seems likely to win on the strict-scrutiny test by 6-3 or maybe 5-4. (These predictions, of course, are worth what you pay for them.)

Further update: Lyle Denniston sees it as 5-4 one way or the other, with Kennedy as the decisive vote.

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