Today the U.S. Supreme Court heard oral argument on the HHS Contraceptive Mandate. The Washington Post reports that the Court was “divided” but “seemed inclined” to sustain religious liberty over employer-funded birth control. It also reports that Justice Anthony Kennedy is widely perceived as the “swing vote” between the “conservatives” and “progressives” on the Court, and the hinge as to which way the decision will go.
It’s hopeful that the justices didn’t come out during oral argument and start dancing all over religious liberty. But don’t assume that the reporting means anything for the outcome.
If you recall, two years ago the Court heard arguments on the “Individual Mandate” question for the ACA, which was essentially whether an individual can be required at law to purchase something, in this case health insurance, or else pay a penalty, or tax, for failing to do so. Distinctions abounded for how the individual mandate differed from — for example — a state government that requires automobile operators to maintain minimum liability coverage.
Speculators who heard oral argument in that case suggested that based upon the questions from the bench, the Court would likely decide to overrule the mandate. Speculators also suggested — parroting what everyone says about the makeup of the Court — that Justice Kennedy was the lynchpin then too. Instead, Chief Justice Roberts voted against the other “conservatives” on the Court and authored the majority opinion.
So, don’t assume that probing questions from the bench somehow means that a favorable decision is forthcoming. Instead, continue to pray for all of the justices, that they make a decision guided by the principles of the Constitution, and a well-formed conscience.