Justice Breyer and Wheaton College v. Burwell

By Gregory Curfman

Tom Goldstein, Publisher of SCOTUSblog, has opined on why Justice Stephen Breyer apparently joined the majority opinion in Wheaton College v. Burwell, which the Court released last Thursday. The majority granted Wheaton a temporary injunction exempting the College from the contraceptive mandate, which was spawned by the Affordable Care Act and which the College claimed violates its religious principles. The vote was 6 to 3, with Justice Scalia filing a concurrence (agreeing “in the result”) and Justices Sotomayor, Ginsburg, and Kagan issuing a forceful dissent. The opinion was unsigned, leaving ambiguous whether Justice Breyer actually did join the majority, though the numbers leave little doubt that he did.

Tom Goldstein believes that Justice Breyer joined the majority because, in doing so, he gained more than he lost. In addition to granting the College an injunction, the majority opinion also states that nothing in the opinion prohibits the government from taking steps to provide women access to contraceptive agents without a copayment. The specific language in the opinion is:

“Nothing in this order precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act.”

Thus, Tom Goldstein believes that in joining the majority, Justice Breyer accomplished the pragmatic objective of preventing the loss of contraceptive coverage for the nation’s women who are employed by nonprofit organizations.

Without comment from Justice Breyer himself, we of course cannot know why he (presumably) joined the majority in Wheaton College v. Burwell, despite the fact he dissented when the Court granted Wheaton College a brief (two-day) injunction earlier in the week. And despite the fact that he also joined Justices Ginsburg, Sotomayor, and Kagan in issuing a very strong dissent in Hobby Lobby v. Burwell.

While Tom Goldstein may be right in his supposition, I would suggest an alternative explanation. It is plausible, in my view, that Justice Breyer simply regards for-profit and religious affiliated nonprofit entities to be fundamentally different. It is understandable that a religious nonprofit educational institution, such as Wheaton College, would oppose the contraceptive mandate as a violation of its religious principles. It is, perhaps, more difficult to apply this same reasoning to a for-profit entity whose mission may be less aligned with religious beliefs than with turning a profit for the owners. It is possible to imagine that Justice Breyer appreciates this distinction and was willing to lend his support to the nonprofit college but not the for-profit corporation.

When I attended oral arguments in Hobby Lobby at the Supreme Court on March 25, I paid special attention to Justice Breyer, knowing that his vote could be critical in the case. Except for one relatively short exchange with Solicitor General Donald Verrilli (who represented the government), Justice Breyer had nothing to say during the extended 90-minutes of oral arguments. He was enigmatic. In his few questions to General Verrilli, he began by pointing out, “…my question reflects no point of view at all on my behalf.” He did not pose even one question to Paul Clement, the attorney representing Hobby Lobby and Conestoga Wood, but instead left that job to Justices Sotomayor, Kagan, and Ginsburg, who were relentless in their questioning of Clement. It was a “hot bench,” except for Justice Breyer (and of course Justice Thomas, who never asks any questions).

What is the real reason that Justice Breyer apparently voted with the majority in Wheaton? Justice Breyer did not write an opinion of his own to explain his position, and Tom Goldstein’s and my predictions may both be off the mark. To clarify his reasoning in this important decision, we can only hope that we will hear more from the justice in the course of time.

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