Over at the SCOTUS Blog, Lyle Denniston called it “one hearing, two dramas.”
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 andConestoga 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.
Another 5-4 decision coming our way, with Justice Kennedy sitting in the catbird seat? Not another Hosanna-Tabor unanimous decision? Figures.
The Green’s were encouraged by the way things went, though.
Go to the SCOTUS website for the complete transcript of the arguments.