The Missing Voices in the Contraception Mandate Cases

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http://www.theatlantic.com/national/archive/2014/01/the-missing-voices-in-the-contraception-mandate-cases/283452/



Lawyers should always listen to what judges say. Believing it, though, is often a mistake.

Take these words: “This order should not be construed as an expression of the Court’s views on the merits.” It’s the last sentence of the Court’s order, issued Friday, in Little Sisters of the Poor v. Sebelius, a religious order's challenge to a portion of the Affordable Care Act dealing with contraception.

Formally, the words are true. The Court hasn’t voted on the issue, and technically may not ever end up hearing it. So thing for a lawyer to say is, “Thank you, Your Honor.”

The correct thing to think, however, echoes George Orwell: “There are ... about eighty ways in the English and American languages of expressing incredulity—for example, garn, come off it, you bet, sez you, oh yeah, not half, I don’t think, less of it or and the pudding! But I think and then you wake up is the exactly suitable answer.”

As Cornell Professor Michael Dorf explains, the Court’s grant of a stay to Little Sisters “suggests that, at least at this stage of the litigation, the plaintiffs have made out a colorable claim.” The nature of that claim offers a glimpse of some toxic ideas floating around in American law.

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1. K&R, nt.