SCOTUS Remands In Birth Control Mandate Cases

In a sure sign the Court was split 4-4 on the validity of the ObamaCare birth control mandate under RFRA, the Court today issued a per curiam order in Zubik v. Burwell remanding the consolidated cases to the circuit courts for reconsideration in light of the parties' supplemental briefs addressing "whether contraceptive coverage could be provided to petitioners' employees, through petitioners’ insurance companies, without any such notice from petitioners." The dispute in the case surrounds the private, religious employers' objection the birth control mandate's so-called "accommodation" that allows such employers to decline to pay for the objectionable insurance coverage but that allows their employees to nonetheless receive the coverage through the employers' health plans.

The Court's order provides: "the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans 'receive full and equal health coverage, including contraceptive coverage.'" Order at 4.

According to the order, a remand in these circumstances is not unusual. The order lists three recent cases in which the Court "has
taken similar action." Id.

The remand buys a divided Court time for the appointment of a ninth Justice who no doubt will be critical to the resolution of the cases. The circuits were originally split 5-1 on the issue presented in the cases, and some form of circuit split is likely to persist after the remand unless the parties reach agreement on an accommodation.

Clement Declines To Fix Factual Misstatements In Deflategate Appeal

It was a dark day for me when I learned that Paul Clement would be representing the NFL in its appeal of Judge Berman's Deflategate ruling, which overturned the league's disciplinary action against Tom Brady for alleged cheating in the 2014 playoffs. The appeal would feature two of my personal heroes--Clement and Brady--going at it in a fight that could determine the fate of the Patriots 2016 season. (In short, critically important stuff.)

The Second Circuit recently heard argument in the case, during which Clement made assertions that many pundits thought misrepresented the facts. Today, Clement declined to correct those misstatements. Here's the skinny:

In Tom Brady's initial appeal to NFL Commissioner Roger Goodell following the imposition of, among other things, a 4-game suspension, Brady told Goodell he subsequently spoke to one of the alleged ball deflators, Jastremski, about both the broiling scandal and Jastremski's preparation of the game balls for the Super Bowl. A since-released transcript of that appeal hearing shows Brady testified:

I don’t remember exactly what we discussed. But like I said, there was two things that were happening. One was the allegations which we were facing and the second was getting ready for the Super Bowl, which both of those have never happened before. So me talking to him about those things that were unprecedented, you know, he was the person that I would be communicating with. Tr. 130.

He also said:

So I think trying to figure out what happened was certainly my concern and trying to figure out, you know, what could be — possibly could have happened to those balls. Tr. 144.

But when the commissioner reported the facts in his appeal ruling, which denied Brady relief, Goodell wrote the following in a footnote:

In response to the question, “Why were you talking to Mr. Jastremski in those two weeks?,” Mr. Brady responded, in sum: “I think most of the conversations centered around breaking in the balls [for the Super Bowl].” For reasons noted, I do not fully credit this testimony.

Goodell cited Brady's lack of credibility in upholding the initial Deflategate penalties. But the footnote was misleading, as Brady’s testimony from the appeals hearing shows. 

Clement had a chance to recede from those misstatements in the NFL’s opening brief to the Second Circuit and at oral argument. But instead he and the NFL doubled down. At argument, for instance, Clement told the three-judge panel: "The first and only meeting ever in the quarterbacks room. And the explanation for that is they’re preparing balls for the Super Bowl." (emphasis added). That ignored Brady's statement to the commissioner that he also discussed the Deflategate issue with Jastremski, as one would expect given the surrounding circumstances.

That misstatement engendered a public outcry--mostly from commentators in the New England area, but also elsewhere--demanding that Clement correct the mistake in the Second Circuit. 

In a letter to the court filed today, March 21, Clement stood by his statements. Here's how Clement characterized his oral argument contention (which I've already quoted above): "Counsel explained at argument that the Commissioner found Mr. Brady's explanation that those communications related to the preparation of Super Bowl footballs not to be credible." Letter at 2. But that pretty clearly isn't all Clement said at the argument, where he added that "the explanation" for Brady's conversation with Jastremski was "they're preparing balls for the Super Bowl." At best, Clement omitted the fact that Brady told the commissioner he and Jastremski also discussed the Deflategate allegations as part of Brady's efforts to "figure out" what "possibly could have happened to those balls." So Goodell's later claim that Brady's testimony was incredible because he failed to mention discussing the scandal with Jastremski was false.

Clement went on to write in his March 21 letter that "what is relevant is that the Commissioner rejected as not credible the only innocent explanation Mr. Brady offered." Letter at 3 (emphasis in original). Sure. But Commissioner Goodell's misrepresentations in his appeal ruling unquestionably portrayed Brady in a bad light. Why keep up the ruse on appeal to the Second Circuit.

(Elsewhere in the letter, Clement admits that the NFL's opening brief contained a misstatement concerning which league interviews Brady's lawyer attended, but claims the fact was "immaterial." Letter at 2, first full paragraph.)

Clement is a highly-respected lawyer and is widely considered one of the best Supreme Court advocates of his generation. I assume the factual liberties in the NFL's brief and the oral argument were unintentional. But that doesn't explain why he wouldn't fess up to them in his letter to the Second Circuit.

Thomas Asks First Oral Argument Question In A Decade

Justice Thomas today asked his first question of counsel at an oral argument in just over one decade. Thomas is well known for his view that oral argument is a time for counsel to present her arguments, not a time for the justices to interrupt to express their own positions on the case. The argument was in the Voisine v. United States case.

Early speculation is that Justice Thomas's question was motivated by Justice Scalia's absence on the Court and a desire to voice opinions that Scalia might previously have voiced for both men (Scalia was a frequent questioner and is often cited as sparking the Court's current practice of asking a torrent of questions during argument). If that's the case, we can expect that Thomas's questioning today won't be an isolated event.

Once the transcript of the oral argument is released, I'll link to it here.

UPDATE: Here is the link to the Voisine oral argument.   Justice Thomas's questioning begins on page 35 and runs through page 39. Five whole pages of questioning!