Commentary on Little Sisters Case

SCOTUS Blog: Partial Win for Little Sisters, by Lyle Denniston:

The Supreme Court on Friday afternoon gave an order of Roman Catholic nuns some added protection against the enforcement of a part of the Affordable Care Act, and spared them — for now — from having to file a government form in order to be exempt. The order, released after weeks of uncertainty, came without noted dissent in the case of Little Sisters of the Poor v. Sebelius (application 13A691). . . .

Dorf on Law: RFRA v. Bureaucracy: The SCOTUS Order in Little Sisters, by Mike Dorf:

On Friday, the SCOTUS issued an order in The Little Sisters case.  The order reads, in full, as follows:

The application for an injunction having been submitted to  Justice Sotomayor and by her referred to the Court, the Court orders: If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit. To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators. The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court’s views on the merits.

Notwithstanding the disclaimer at the end, it is hard not to read the order as reflecting at least some view on the merits.  After all, if the Court had accepted the government's representation that, because the Little Sisters use a "church plan," their employees would not receive contraceptive insurance in any event, it is hard to see how the equities could have warranted a stay. . . .

Balkinization: Not With a Bang...(The Supreme Court Wisely Preserves the Status Quo in Little Sisters), by Marty Lederman:

The Supreme Court issued this one-paragraph order today in the Little Sisters case: . . . 

This deftly crafted paragraph is a fine example of Solomonic judgment.  It leaves things just as they were and, for all practical purposes, just as they would have been in any event, as I explained here . . . .