During last week's Supreme Court argument in the Hobby Lobby/Conestoga Wood Specialties, Justice Sotomayor remarked that the lawyers in the case had "picked great plaintiffs." See Oral Argument Tr. at 19. At the time, she didn't seem particularly pleased with that fact. And she certainly didn't mean it as a compliment. More, really, of an inconvenience for members of the Court that didn't agree with the plaintiffs' position.
Later events have called the "great plaintiffs" moniker into question: Earlier this week, Mother Jones broke the news that Hobby Lobby is invested in a number of companies that manufacture the very contraceptive products that Hobby Lobby finds so offensive.
In fairness to Hobby Lobby, it appears that those investments were bundled up in mutual funds that invested in the offending companies. And it's not as though Hobby Lobby management chose the offending companies; that's a task that they entrusted to their investment managers. But still -- Hobby Lobby could have ensured that none of those offending companies met with its money by employing an investment firm that specializes in "faith-based investing."
I can only imagine Paul Clement and Viet Dinh sitting around the Bancroft office, rueing this news together. Yet it's hard to imagine that this will have any impact on the legal proceedings, at least at the Supreme Court stage. Facially, it looks quite bad; but none of this is part of the trial record. The appropriate place to further develop this, er, development, is in the trial court. (The government's appeal was taken from the Tenth Circuit's decision reversing the district court's decision to deny the preliminary injunction; the district court has since granted the preliminary injunction and stayed further proceedings. See Resp. Br. at Cert. Stage, at 13, n.10)
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