The Supreme Court, in a one-hour, twenty-eight-minute session Tuesday, staged something like a two-act play on a revolving stage: first the liberals had their chance and Justice Anthony M. Kennedy gave them some help, and then the scene shifted entirely, and the conservatives had their chance — and, again, Kennedy provided them with some support. 
 
 So went the argument in the combined cases of Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius. The “contraceptive mandate” in the new federal health care law, challenged under federal law and the Constitution, fared well in the first scene, and badly in the second. 
 
 But the ultimate outcome, it seemed, will depend upon how Justice Kennedy makes up his mind. There was very little doubt where the other eight Justices would wind up: split four to four. 
 
 In the first drama, Kennedy worried over the plight of female workers, and he suggested that their interests could be protected with little cost to their employers. In the second he worried over the plight of corporations owned by families opposed to abortion and he implied that forcing them to pay for it would be wrong. 
 
 The hearing could not have been a pleasant experience for two experienced advocates — Washington attorney and former U.S. Solicitor General Paul D. Clement, and current Solicitor General Donald B. Verrilli, Jr., making a return engagement from their encounter two years ago when the Affordable Care Act first came up for review in the Court — when each won something. 
 
 In the end, what made trouble for each of them Tuesday was the slippery slope: if we ruled for you, what would that mean for other factual scenarios or other laws that might impinge on religious beliefs? 
 
 Clement was badgered throughout his time at the lectern, especially by Justices Elena Kagan and Sonia Sotomayor, who suggested that if corporations gain an exemption from having to provide birth-control services for their female employees, then the next complaint would be about vaccinations, blood transfusions, and a whole host of other medical and non-medical services that a company or its owners might find religiously objectionable. 
 
 Early in the argument, Justice Kennedy asked non-committally how the Court could avoid the constitutional issue of the mandate’s impact on the right to freely exercise religion. Clement said it would be easy, and relying only on a federal law, the Religious Freedom Restoration Act, would clearly favor a corporate exemption to the mandate. 
 
 When Kagan and then Sotomayor said corporations could accommodate their female workers’ access to contraception at little financial cost, either by paying a penalty for not providing the service in the health plan or by giving up such a plan altogether, Kennedy chimed in to suggest that, financially, at least, it would be “a wash.” 
 
 When those two explored whether the government was letting too many businesses escape the mandate by “grandfathering” their health plans, Kennedy interrupted to say that the conversation was focusing only on the mandate from the perspective of the employers. What about the workers, who may not agree with their employers’ religious beliefs, Kennedy asked skeptically: “Does religion just trump that?” 
 
 When it was Solicitor General Verrilli’s turn at the lectern, he found immediately that Chief Justice John G. Roberts, Jr., and Justices Antonin Scalia and Samuel A. Alito, Jr., were ready to pounce, disputing each of the government lawyer’s core points about the need for the contraceptive mandate in this context. 
 
 When Verrilli began putting heavy emphasis on his point that the Court, in weighing religious claims, must take full account of the negative impact that has on “third parties” who would be affected, Justice Scalia told him that the RFRA law makes no mention of third-party interests. 
 
 When Verrilli said the Court has never found a right to exercise religion for corporations, Alito wondered if there was something wrong with the corporate form that it would not be accorded religion freedom rights. Did Verrilli agree, Alito said, with a lower court’s view that the only reason for a corporation to exist was to “maximize profits?” Verrilli said no, but Alito had made his point. 
 
 Chief Justice Roberts wondered why, if a corporation could bring a claim of race discrimination, why couldn’t it bring a claim of religious discrimination? And, seeming to look for a way to rule narrowly for corporations, he suggested that the case might be decided by finding such protection only for corporations that are owned by a tightly limited group of shareholders. Verrilli tried to resist both thrusts. 
 
 As Verrilli’s situation worsened, Justice Kennedy moved in to wonder why it was that Congress would allow a government agency — the Health and Human Services Department — “the power to decide a First Amendment issue of this consequence…. That is for Congress, not for an agency.” Kennedy would repeat that criticism later in the argument. 
 
 Although the Solicitor General had to contend mostly with questions and comments by the conservative members of the Court, he also had some difficulty when one of the Court’s moderate liberals — Justice Stephen G. Breyer — finally moved into the argument to ask why the government couldn’t just pay for the services it wanted female workers to have. 
 
 Verrilli tried to answer by saying that, if the government did try a different way to assure such services for corporate employees, the religious owners of some companies would just challenge that, too. That did not satisfy Breyer, who wanted to know “how this case fits into the broader spectrum” of how courts and government accommodate religion. 
 
 Breyer did not seem to be lining up with the corporations, but instead looking for assurances that a ruling against them in this case might have broader implications that worried him. 
 
 The low point for Verrilli, however, came late in his argument, when Justice Kennedy told him bluntly: “Under your view, for-profit corporations can be forced to pay for abortion. Your reasoning would permit that…. You say that for-profit corporations have no standing to litigate what their shareholders believed.” 
 
 Wisely, and predictably, Clement would start his rebuttal with Kennedy’s comment about corporations being forced to pay for abortions. He obviously wanted that thought to linger as the Justices left the bench. 
 
 Recommended Citation: Lyle Denniston, Argument recap: One hearing, two dramas, SCOTUSblog (Mar. 25, 2014, 4:50 PM), http://www.scotusblog.com/2014/03/argument-recap-one-hearing-two-dramas/ ||||| Analysis 
 
 The Obama administration had four Supreme Court Justices quite plainly on its side Wednesday in the latest fight over the new health care law, but that may be all that it had because there was no way to stop other Justices from thinking — and thinking negatively — about a single word: “hijacking.” In a real sense, the fate of the Affordable Care Act’s birth control mandate, at least for the near future, could well be bound up with that word. 
 
 “Hijacking” is what a long list of religious institutions that object for reasons of faith to contraceptive methods have used to describe what they say the federal government will do to their health-care plans as it moves toward providing free birth control to those institutions’ female employees and college students. And, if there was a startling moment during the ninety-four-minute hearing on Zubik v. Burwell, it came when Justice Anthony M. Kennedy deployed that word in obvious sympathy to those institutions. 
 
 On an eight-member Court, with the late Justice Antonin Scalia not yet replaced, it was clear going into the Justices’ fourth review of a major controversy over the ACA that there was at least a possibility of a four-to-four split. Four Justices remain from the majority, and four from the dissent, in the ruling two years ago that limited the government’s power to provide free contraceptives to the employees of for-profit businesses with a limited ownership by religiously devout families objecting to some forms of ACA-mandated birth control. 
 
 But among the four in the majority in the Burwell v. Hobby Lobby Stores decision was Justice Kennedy, and he had made a considerable effort then to make that ruling seem quite narrow. In fact, in a separate opinion then, he openly endorsed the technique the government had used for non-profit religious institutions, to allow them to opt out of the birth-control mandate, and suggested it would work for for-profit companies, too. But that is the very “accommodation” approach that, on Wednesday, he labeled a form of “hijacking” of non-profits’ health plans. 
 
 It might be that, if that had been Kennedy’s only comment during the lengthy and high-spirited hearing, it might not have been so telling. But it was among a number of his other remarks and questions that appeared to show a significant concern for the ability of religious charities, hospitals and institutions to keep control of their own employee benefit plans. (He did make one passing comment that it would be hard for the Court to write an opinion that, if the government had provided an exemption for churches — as it does under the ACA birth-control mandate — the government had to exempt every other religious institution, too, But that skepticism was reserved for an alternative argument by the non-profits that the government’s differing treatment of religious institutions made no sense, and that argument seemed to attract little support on the bench.) 
 
 The written transcript of the hearing showed that “hijack” and “hijacking” were heard a total of seven times. It was first spoken by Washington, D.C., lawyer Paul D. Clement, early in a high-energy performance complaining about the government supposedly attempting to put his clients into the role of “conscientious collaborators” in the violation of their religious beliefs. 
 
 Chief Justice John G. Roberts, Jr., used the word as Kennedy had, in plain sympathy to the challengers. All of the other times, it was spoken by Justices or an Obama administration lawyer, Solicitor General Donald B. Verrilli, Jr., as they tried to dispute that the “accommodation” amounted to the hostile takeover of the religious groups’ health plans. 
 
 The Chief Justice was quite active in the argument, and the sum of his participation was apparent and quite strong support for the non-profit groups’ claims that the government was enlisting their plans in an enterprise that violated their beliefs. Justice Samuel A. Alito, Jr., however, was the most outspoken defender of the claims of the non-profit institutions. He pressed Verrilli, for example, to say why the ACA birth-control mandate was not the equivalent of someone setting up a birth-control clinic in the home of a nun in the Little Sisters of the Poor, and expecting her to tolerate it without protest. (That was a rather extreme hypothetical that attorney Clement had suggested would be equivalent to the ACA mandate’s effect on the Little Sisters’ health plan for its employees.) 
 
 On the other side of the Court’s seeming divide on Wednesday, Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor left no doubt whatsoever that they were prepared to side with the government’s view of the perceived benign effect and operation of the ACA mandate. Justice Stephen G. Breyer spent a good deal of time expressing difficulty in drawing a line to define what was allowed or not allowed under the ACA mandate as it applied to religious institutions, but the thrust of much of his questioning seemed quite supportive of the government. 
 
 If those four do vote, when the Court takes up the case for discussion at this Friday’s private Conference, to uphold the ACA mandate, they may well find the Chief Justice and Justices Alito and Kennedy on the other side. (The chances are that Justice Clarence Thomas, who was part of the Hobby Lobby majority two years ago, would be sympathetic to the religious institutions’ claims, although he said nothing on Wednesday.) 
 
 Such opposing alignments could mean the Court would vote four to four on the outcome. If the Justices concluded that that was the only option available to them as an eight-member Court, the effect would be to uphold the federal appeals courts’ decisions that the Court was reviewing on Wednesday; all had gone in favor of the ACA mandate. A four-four split would actually set no precedent and it would not resolve the existing conflict among appeals courts on the validity of the mandate under the Religious Freedom Restoration Act. Eight appeals courts have sided with the government, but one — the U.S. Court of Appeals for the Eighth Circuit — had ruled in favor of the religious non-profit institutions’ challenge to the ACA mandate. 
 
 What that would mean, at least in the short term, is that women who lived in the geographic areas of the eight federal appeals courts that have upheld the mandate could begin to receive free contraceptives under the mandate, perhaps until the Supreme Court could in the future take up the question again. The government has appealed Eighth Circuit’s ruling against the contraceptive mandate to the Justices, and the Court could turn to that next. 
 
 But, with the prospect that the Scalia seat would remain open for some period of time amid squabbling between the White House and the Senate over who would succeed Justice Scalia, there would not be much prospect for the Court to do better than a four-to-four split on any new case testing the mandate’s legality. That would leave the rather bizarre effect that the mandate was in effect in much of the nation, but not in the seven states that are located in the Eighth Circuit: Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North and South Dakota. 
 
 The Court would also have the option, in view of the initial vote of a split, to try to put the case over into a new Term, perhaps in hopes that a ninth Justice would join the Court and allowed a majority to form on this controversy. 
 
 And it is not beyond the possible that the Court would strive very hard to put together a majority position on the Zubik case, so as to avoid an even split or the prospect of putting off the question for perhaps a fairly lengthy period of time. 
 
 If Wednesday’s hearing did result in leaving a number of options dangling before the Justices, there was one aspect of it that was free of any doubt: Washington attorney Clement, and the other Washington lawyer, Noel Francisco, arguing for the religious non-profits, would do their best to entice the Court into thinking about this case as if it were mainly about the sympathetic order of the Little Sisters of the Poor. In fact, in the very first sentence of Clement’s opening argument, his first words were a reference to the Little Sisters of the Poor as a client. He and Francisco made repeated references to that Roman Catholic order throughout their presentations. 
 
 The case, actually, has the title of Zubik v. Burwell, because the case by that name was the first to reach the Court, and any decision in the case will be known by that title. 
 
 Recommended Citation: Lyle Denniston, Argument analysis: On new health care case, a single word may tell it all, SCOTUSblog (Mar. 23, 2016, 3:49 PM), http://www.scotusblog.com/2016/03/argument-analysis-on-new-health-care-case-a-single-word-may-tell-it-all/ ||||| Analysis 
 
 The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that. A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself. 
 
 The dilemma could be captured perfectly in two separate comments by Justice Antonin Scalia — first, that it “can’t be right” that all of the myriad provisions of the law unrelated to the mandate had to fall with it, but, later, that if the Court were to strike out the mandate, “then the statute’s gone.” Much of the lively argument focused on just what role the Court would more properly perform in trying to sort out the consequences of nullifying the requirement that virtually every American have health insurance by the year 2014. 
 
 The Wednesday morning argument offered the Court three mutually exclusive options: strike down all of the Affordable Care Act along with the mandate (the challengers’ position), strike down only two core changes in the way the health insurance system works (the government position), and strike down nothing but the mandate (the position of a Court-appointed lawyer). Not one seemed to be especially appealing to members of the Court, and each of the three lawyers who came to the lectern faced tough and often skeptical questioning, from across the bench. 
 
 Congress’s capacity to react in a sensible way also came into some question, particularly from Justice Scalia and, in a way, from Justice Anthony M. Kennedy, both of whom seemed to harbor doubts that the lawmakers would be up to the task of working out a new health care law if this one failed, either totally or partially. Scalia noted the problems in the filibuster-prone Senate. Kennedy wondered whether expecting Congress to perform was a reference to “the real Congress or a hypothetical Congress.” 
 
 In the past, the Court has not spoken clearly about what is called the doctrine of “severability” — that is, if one part of a federal law is struck down as unconstitutional, can most or all of the rest of it be “severed” from the dead part and thus salvaged. At the end of the morning argument, it was not evident that the Court will do very much clarifying in the health care case. Of course, it could leave the doctrine as it stands if it were to uphold the mandate, and it would not have to solve the struggle that it encountered over the fate of the ACA without the mandate. 
 
 The Court also could avoid settling the severability issue in this case if it were to take the government’s suggestion that, for technical legal reasons, none of the challengers had any right to ask that other parts of the ACA be struck down along with the mandate. That argument, advanced by Deputy Solicitor General Edwin S. Kneedler, found no support on the bench. If the severability issue has to be faced, due to a nullification of the mandate, the Court appeared determined to try to work through it, however distasteful — or even disorienting — that task might be. 
 
 Washington attorney Paul D. Clement wanted to make that task very easy for the Justices: after you take out the mandate, then declare none of the remaining provisions can stand — however unrelated they may seem to be to the mandate. Though some parts of the law may be worthwhile, said Clement, “you are going to have to take the bitter with the sweet.” 
 
 When Justice Sonia Sotomayor became the first to ask “why don’t we let Congress fix it,” the challengers’ lawyer said that Congress would have to get involved no matter what the Court decided, but he said the Court would have to decide what task to leave to the lawmakers: “Do you want to give Congress the task of fixing the statute after something has been taken out, especially a provision at the heart, or do you want to give Congress the task of fixing health care?” It was clear that he thought the better result would be to make it so that Congress would have to start all over to fix the nation’s health care system. 
 
 Justice Scalia then set out on what would become a dominant theme: the difficulty of figuring out, after the fact, what Congress would have wanted stricken from the law if it knew it could not have the mandate. If there were one small provision that had to be stricken, perhaps because Congress wrote it into the law to help win votes for the overall measure, Scalia asked, why would the entire law have to go? But that simply enabled Clement to make his basic point that, it was not some small provision that caused the constitutional problem, it was the mandate, the package of provisions related to it, and many other sections of the law that would be linked directly or indirectly to the mandate. 
 
 The more liberal members of the Court began joining in, suggesting that they were interested in salvaging as much of the remainder of the law as they could — with the possible exception of the basic reforms that Congress had sought to impose on insurance companies to assure that they provided coverage even for unhealthy persons and to assure that they did not raise premiums unreasonably. If the Court could preserve “half a loaf” rather than taking away the entire loaf, Justice Elena Kagan said, that would be preferable. And Justice Ruth Bader Ginsburg told Clement that “there are so many things in this Act that are unquestionably okay.” So, she said, why make Congress reenact those? Pointedly, she wondered if the Court were being asked to make a choice “between a wrecking operation…or a salvage job.” 
 
 Clement, though, insisted that if the Court did salvage everything but the mandate and its immediately related provisions, nothing would be left but “a hollow shell.” Chief Justice John G. Roberts, Jr., countered that it would not be a hollow shell, since many are things that Congress has put in the law to keep long-standing provisions of federal law intact, and those would have nothing to do with the mandate. 
 
 Justice Kennedy pressed Clement to spell out the kind of severability standard he wanted the Court to apply, noting that the Court did not want to be drawn into trying to make an “intrusive” inquiry into what was on Congress’s mind in adopting one provision or another as part of the ACA. “What test,” Kennedy asked, “do you suggest that we follow if we want to clarify our jurisprudence?” The “objective test” the lawyer suggested was that the Court determine whether the law “can operate in the manner that Congress intended” if a part (like the mandate) were stricken. 
 
 Justice Sonia Sotomayor countered that no statute ever operates as Congress had intended, if part of what Congress had put into it is taken out. So she said the test had to be something more than congressional intent. Why not, she asked, start out with the presumption that Congress would have wanted everything but the invalid part to be salvaged. If Congress has not explicitly said that nothing else is to be salvaged, she suggested, the Court should not do away with any other part. “We should let them fix their problem….Why, in a democracy structure like ours,” should the Court be drawn into “making the legislative judgment.” 
 
 These exchanges gave Clement an opportunity to make what he called a broader point. Looking back to a 1976 campaign finance ruling, in which the Court had drawn unusual distinctions between giving and spending, striking down limits only on spending, Clement said that set off four decades of effort by Congress to try to fix what was left of the law, “largely unsuccessfully.” That, he said, illustrates why the Court should give Congress a chance “to actually fix the problem” by striking down the entire law and thus set the stage for the lawmakers to start all over on health care. 
 
 The Justices, though, did not seem to be seeing in Clement’s argument for sweeping it all aside an answer to the judicial dilemma. “What do your propose that we do,” Justice Stephen G. Breyer asked, “other than spend a year reading all this…” Breyer seemed to be assuming that the Court would not strike down everything else, as Clement wanted, but follow a more selective path. Justice Samuel A. Alito, Jr., also pressed Clement for a “fallback position” if the Court were not to strike down the remainder of the ACA. He slightly modified his view, saying that the Court could use its own judgment, but he wound up again arguing that the best route would be to wipe the slate clean, and let Congress respond. 
 
 Deputy Solicitor General Kneedler ran into immediate difficulty as he opened his argument with the point that the Court should not even address severability. But that led the Justices into a series of questions about how anybody feeling wronged by something in the law would go about challenging it in court. Kneedler responded that, just because no one might be able to sue, there was no obligation to give them that chance. Justice Ginsburg chimed in to repeat her comment that it should not be for the courts to sort out what happened, but that should be left to Congress. 
 
 Justice Scalia also argued in favor of leaving it to Congress, but he made it clear he was talking about doing so only after the entire Act had been voided along with the mandate. Justice Kennedy seemed to agree, by arguing that the Court would be seen as exercising judicial activism, not restraint, if it allowed some part of the law to remain intact but that wholly changed what Congress had intended to happen in the health insurance industry. 
 
 When Kneedler insisted that the Court look closely at the text of the ACA and decide what to keep and what to save, several Justices rebelled, suggesting that that would be an irksome and very difficult and time-consuming process. “We are going to go through this enormous bill, item by item, and decide each one?” Justice Scalia asked incredulously. “Is this not totally unrealistic?” It would be a revolution in the Court’s severability approach to have to do that, Justice Kagan added. 
 
 Justice Breyer offered an un-judicial approach, in which Kneedler and Clement would get together and work out between them what parts of the law to save and what to have cast aside. 
 
 Near the end of his argument, Kneedler moved to a broader argument, discussing some of the consequences of a decision to nullify all of the Act, including throwing millions of people who had newly obtained insurance off of the rolls. Many changes in the Medicare program for the elderly also have gone into effect, he added. But the Chief Justice interrupted to say that all of that occurred on the assumption that the mandate was constitutional, and those developments would not keep the Court from making its own decision about the mandate and the consequences of nullifying it. 
 
 The final argument on severability, by Court[-appointed Washington lawyer H. Bartow Farr III, was in favor of salvaging all of the Act if the mandate had to go, disagreeing even with Kneedler’s suggestion that two provisions closely related to the mandate would have to go if it did. But that part of the argument seemed to bog down in a dispute over whether the insurance industry would be bankrupt if it lost the mandate as a generator of a huge new pool of premium payers whose money would make the required expansion of insurance coverage work. 
 
 Congress, Farr said, had adopted a half-dozen other provisions that would help offset the costs of the expanded coverage, including a system of very generous subsidies to encourage people to obtain insurance even if they were no longer required to do so by a mandate. 
 
 It did not appear that Farr had any success in trying to explain away findings by Congress that the mandate was “essential” to make the other changes in the health insurance market work as intended. The definition he offered of the word seemed too exotic for the Court. 
 
 Recommended Citation: Lyle Denniston, Argument recap: A lift for the mandate? (FINAL UPDATE 5:12 pm), SCOTUSblog (Mar. 28, 2012, 6:56 PM), http://www.scotusblog.com/2012/03/argument-recap-a-lift-for-the-mandate/
– Based on the breathless commentary after the Supreme Court's oral arguments today, it might have seemed as if the court had already decided to rule against health care reform. Sorry to spoil the fun, but it's way too early for either side to think this is a done deal, writes Steve Kornacki at Salon. "All of this alarmism may well amount to nothing." Yes, Anthony Kennedy sounded skeptical about the individual mandate, for example, but Kornacki points to a detailed recap of arguments by Lyle Denniston at SCOTUSblog suggesting that Kennedy's opposition isn't as solid as thought. "That is where Tuesday’s argument wound up—with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior," writes Denniston. And don't be shocked if John Roberts ends up agreeing with him, he adds. "The court isn’t expected to rule for months, maybe not until late June," adds Kornacki in his post. "It’s entirely possible that the mandate will be thrown out, but it’s all still guesswork until then." Read his full column here. Or check out the audio recordings of the arguments for yourself here.