In rueful praise of Elena Kagan: The 'Little Sisters' ruling

In rueful praise of Elena Kagan: The 'Little Sisters' ruling
© Greg Nash

I wish she were on my side.

Conservatives ruefully jest that, while John Roberts may hold the lofty title of Chief Justice, he’s really just another seat on the Kagan Court. In Wednesday’s much-anticipated ruling on a religious liberty challenge to the ObamaCare contraceptive mandate, Justice Elena KaganElena KaganTo infinity and beyond: What will it take to create a diverse and representative judiciary? Texas, abortion and the tyranny of the shadow docket Senate panel will probe Supreme Court's Texas abortion ruling, 'shadow docket' MORE again demonstrated that she is not just the Supreme Court’s center of gravity. She is its master tactician.

And how she must be chortling, while the Trump administration celebrates as if the 7-2 majority decision were not just a win but a rout in favor of the Constitution’s guarantee of free religious exercise. Justice Kagan knows better. If you scratch beneath the surface, religious liberty is actually losing, albeit in slow motion. Thanks to Kagan’s strategy, there are lots of innings left to play, and her team is much better suited to the long game.


When the hangover ends, conservatives will remember Little Sisters of the Poor v. Pennsylvania as the case in which the court choked. Don’t be deceived by the 7-2 vote, in which the court’s putative conservative bloc of five justices was joined by Kagan and her fellow progressive, Justice Stephen BreyerStephen BreyerBarrett: Supreme Court 'not comprised of a bunch of partisan hacks' Sunday shows - Manchin says he won't vote for .5 trillion bill Breyer says term limits would 'make life easier for me' MORE. This seven-justice majority agreed only on a narrow holding, confined to a technical matter of statutory construction regarding the so-called Affordable Care Act (ACA, or ObamaCare). 

That was not a vindication of liberty. On the core question, there were no more than four justices, and maybe just three, supportive of free exercise of religion. That’s why it’s a mirage of victory in what eventually will be a desert of defeat.

There actually were three issues in the case. 

First, there was the question of statutory interpretation, to wit: In enacting the ACA, did Congress authorize executive branch departments to prescribe regulations that exempted employers who harbor sincere religious objections from complying with the so-called contraceptive mandate? 

Second, there was the central question about religious liberty: Does the ObamaCare mandate unlawfully burden the free exercise of religion under the Religious Freedom Restoration Act (RFRA)? 


Third, and finally, what happens next? That is, depending on how the first two questions were handled, what is the outcome of the case?

The court decided the first question in favor of robust administrative power. That’s why Kagan and Breyer were willing to join the majority. As good progressives, they like the idea of government by bureaucratic rule-making. If Congress is making the laws, they can be hard to change since lawmakers are politically accountable and legislation is a slow, messy process. But if broad rule-making discretion is vested in the unaccountable bureaucracy — the executive departments and quasi-independent agencies that make up the sprawling administrative state — the rules can easily be modified. 

Justice Kagan sees no problem in upholding a Trump administration exemption for religious believers. She knows that by next spring, a new Biden administration may be rewriting the rules. At that point, the bureaucracy will either rescind the exemption altogether, or drastically restrict its application solely to explicitly religious organizations, rather than to all American employers who hold sincere religious convictions — consistent with the progressive project to erode First Amendment free-exercise rights.

The court could have staved off that outcome, but only if it was willing to take on the case’s second question. Instead, it punted, declining to decide whether the ObamaCare contraceptive mandate unduly burdened religious liberty. 

As Justice Samuel AlitoSamuel AlitoThe Hill's Morning Report - Presented by AT&T - Supreme Court lets Texas abortion law stand Biden rips 'extreme' new Texas abortion law Six-week abortion ban goes into effect in Texas MORE illustrated in his exasperated concurrence, joined by Justice Neil GorsuchNeil GorsuchReligious exemption to vaccine mandates may be difficult to obtain, as Amish case shows Can Biden defend his vaccine mandate? The 'nondelegation doctrine' may be the challenge The Hill's Morning Report - Presented by AT&T - Supreme Court lets Texas abortion law stand MORE, this should have been a piece of cake. Under the RFRA, a law or rule that substantially burdens religious belief may only be justified if the government can show it has a “compelling interest” and has regulated in a way that imposes the “least restrictive” burden on religion. 

Here, as Alito showed, the government could establish neither. First, there is no compelling government interest in providing all women with free access to all Food and Drug Administration-approved contraceptives. Congress did not even write such a mandate into the ACA — it was imposed by the Obama administration (Justice Kagan is grinning again!). Even the bureaucrats haven’t (yet) tried to cover all women, and there are lots of important medical services (e.g., dentistry) for which the government does not require coverage. Second, there are ways that the government could impose the mandate without burdening religious believers — it could, for example, directly subsidize birth control.

If the court had ruled that the mandate could not be justified under the RFRA, that would have won the case for the Little Sisters of the Poor. So why didn’t the court do that? It has to have been that there were not five votes. 

I suspect the main culprit is Chief Justice Roberts. More a transactional political operator than a conservative, Roberts obsesses over the court’s standing with the media, and his own. He would rather have a 7-2 decision on a technical point that could be spun as collegial and transcending partisanship, than a 5-4 victory for religious liberty that would surely be lambasted by Democrats and the press. It is worth noting that his scheming is, as ever, too clever by half: Though the justices did not actually take a stand for religious liberty, the left is attacking the court as if it had done so. Try as you might, Mr. Chief Justice, they’re never going to love you.

The enigma is Justice Brett KavanaughBrett Michael KavanaughRepublicans keep distance from 'Justice for J6' rally Senators denounce protest staged outside home of Justice Kavanaugh Why isn't Harris leading the charge against the Texas abortion law? MORE, a conservative who likes to stress that he is a team player. He appears to have formed a bond with Roberts and Kagan, a critical mass that effectively decides big cases. Obviously, that arrangement is perfect … for Kagan.

Justice Clarence ThomasClarence ThomasClarence Thomas warns against 'destroying our institutions,' defends the Supreme Court Supreme Court returning to courtroom for arguments The Hill's Morning Report - Presented by AT&T - Supreme Court lets Texas abortion law stand MORE remains a stalwart conservative. His majority opinion is the best that could be hoped for given the constraints. The opinion upholds the exemption from the mandate and emphasizes that the RFRA should be considered by courts and bureaucrats going forward. But he couldn’t rule the way Alito and Gorsuch wanted to rule — that is, hold that the RFRA is dispositive — because Roberts and Kavanaugh wouldn’t give him the votes.

Thus, the case goes back to the lower courts. Knowing that, Justice Kagan wrote a concurrence instructing those courts on how to arrive at the conclusion that the Trump administration’s exemption is invalid under the Administrative Procedure Act

It is a master stroke. Over time, as the Little Sisters are further worn down by a litigation that already has taken seven years, the left will win. That is, progressives will get the outcome demanded in the overwrought dissent written by Justice Ruth Bader GinsburgRuth Bader GinsburgTo infinity and beyond: What will it take to create a diverse and representative judiciary? Justice Ginsburg's parting gift? Court's ruling on Texas law doesn't threaten Roe — but Democrats' overreaction might MORE and joined by Justice Sonia SotomayorSonia SotomayorWill the DOJ manage to protect our constitutional rights now that the Supreme Court refuses to? Supreme Court trashed its own authority in a rush to gut Roe v Wade Supreme Court's abortion ruling amplifies progressives' call for reform MORE. Kagan grasped that, at this moment, if she and Breyer had joined that unyielding position, the other five justices might have united under the RFRA to defeat them.

Instead, she played for time, so the game goes on. And as it does, Justice Kagan knows that when it finally gets back to the Supreme Court a year or three from now, there could well be a new Democratic administration writing the rules and choosing the new judges — and maybe even some new justices.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter @AndrewCMcCarthy.