What Standard of Review Did the Court Apply in Wheaton College?

The Court’s recent order in Wheaton College v. Burwell raises a lot of questions about religious liberty, but it also raises a basic procedural question: what standard of review did the Court apply? Justice Sotomayor’s powerful dissent takes the Court to task for not applying a very high “indisputably correct” standard, but the Court appears to go even further. Whereas a district court must normally find a likelihood of success on the merits before issuing preliminary relief, the Court (or, at least, a plurality) declares that “this order should not be construed as an expression of the Court’s views on the merits.” This apparent agnosticism is quite anomalous.

Wheaton involves a Religious Freedom Restoration Act (RFRA) suit in which Wheaton College argued that it should be exempt from a healthcare requirement pertaining to contraception coverage. The district court declined to issue a preliminary injunction, citing circuit precedent. The College then turned to the Seventh Circuit, which refused to issue a stay pending appeal. Finally, the College applied to the Circuit Justice for the Seventh Circuit, Justice Kagan, for an injunction pending appeal. Declining to act on her own, Justice Kagan referred the application to the full Court, which conditionally ordered an injunction pending appeal. Justice Scalia noted that he concurred in the result, and Justice Breyer did not publish his vote at all. Justice Sotomayor vigorously dissented, joined by Justices Ginsburg and Kagan.

The Court’s order doesn’t clearly establish a standard of review. Instead, the Court notes the existence of a circuit split on the question whether to issue preliminary relief in this context. The Court also posits that, given the positions of the parties, its order shouldn’t adversely affect contraception coverage. Finally, the Court asserts that “this order should not be construed as an expression of the Court’s views on the merits.”

The dissent, by contrast, was clear about the appropriate standard: the Court may issue an injunction only when an applicant’s entitlement to relief is “indisputably clear.” This extraordinarily high standard comes from a number of “in chambers” decisions issued by individual justices—including Chief Justice Roberts and Justice Scalia—who have ruled on applications for injunctions. Interestingly, Justice Sototmayor didn’t cite any opinions for the Court stating the “indisputably clear” standard of review.

The Court’s decision not to “express[]” its “views on the merits” stands in stark contrast to the normal test for issuing issuing preliminary relief. For instance, the Roberts Court has spawned an enormous amount of debate and judicial disagreement by arguably tightening the standard applicable to district courts hearing claims for preliminary injunctions. According to many cases, such relief is appropriate only if there is a “likelihood of success on the merits.” Yet the Supreme Court felt comfortable issuing an injunction pending appeal without making that finding.

Perhaps the Court tacitly chose to treat the College’s application like a request for a stay of a lower court judgment, which requires a likelihood that certiorari would be granted and a significant probability of prevailing on the merits. Though the Court didn’t say so, that standard could apparently have been met. But the College didn’t ask to stay a lower court judgment. Instead, it was asking the Supreme Court to issue the case’s first judgment relating to the merits. As Justice Sotomayor showed, the justices have said that such injunctions demand a higher standard of review.

So, what gives? I can think of a few possibilities; doubtless there are more.

First, the Court may have tacitly held that the in-chambers opinions are wrong and that the “indisputably clear” standard should simply be categorically abandoned going forward. This seems unlikely, particularly given that the Chief Justice and Justice Scalia, who have previously applied the “indisputably clear” test, supported the Wheaton order.

Second, the Court may have secretly believed that the College met the “indisputably clear” test. That possibility may particularly explain why Justice Scalia concurred only in the result. Justice Sotomayor’s most pointed effort to rule out this possibility focused on the existence of a circuit split on the injunction issue. As Sotomayor explained, the Chief Justice had previously written that the existence of a split all but proved that a particular issue couldn’t possibly be “indisputable.” Whether or not that approach is correct, it does seem improbable that the Court felt the College’s claim was “indisputable,” particularly given its express reservation as to the merits.

Third, the Court may have implicitly narrowed the scope of the “indisputably clear” standard, so that—going forward—it will apply only to decisions issued by individual justices acting in chambers. Supporting this possibility, some of the in-chambers opinions emphasize the enormity of allowing a single justice to issue an injunction, so perhaps the Court felt that it could apply a lower standard once the application had been referred to the entire Court. If this is right, then the “indisputably clear” standard—whatever its prior force as precedent—is no longer the governing test.

Fourth, the Court may believe that the existence of nationwide disagreement on this point separates this case from virtually all other similar requests. Normally, requests for injunctions from the Court are factbound. Here, by contrast, there are many relevant cases, and the situation cries out for a nationwide rule. But as Justice Sotomayor pointed out, national uniformity could go either way. And, absent a view of the merits, it’s unclear how the Court could prefer the College over federal law. Conceivably, the Court might think that the order preserves the status quo, even though it’s enjoining a law—though that view would be controversial and surprising, to say the least.

Finally, a majority of the Court may have felt that the College deserved a stay based on an internal compromise reached in the very similar Little Sisters of the Poor v. Sebelius case decided several months ago. In Little Sisters, the Court issued a short, cryptic, and unanimous injunction pending appeal in a case raising substantially the same issue in Wheaton. Clearly, some kind of agreement was reached. It’s possible that a majority of the Court felt that, in deciding Little Sisters, a uniform policy had been established for all similar cases. The possibility of a previous internal compromise may also explain why Justice Breyer didn’t join the Wheaton dissent.

Of course, all this is speculation. We’ll have to wait for the Court to field more requests for injunctions to know the (new?) state of the law.

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11 Comments

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11 responses to “What Standard of Review Did the Court Apply in Wheaton College?

  1. Roy Englert

    Alas, although I am not a cynic about the Court, I am acutely aware of the limits of human capability — even the Justices’ capability. I think the explanation for the standardless majority opinion in Wheaton is end-of-Term fatigue, pure and simple. This was a tough Term, surface unanimity in many cases notwithstanding.

    • Roy, I think there is something very right about your comment, in the sense that “end-of-term fatigue” may well have influenced how the situation unfolded. And fatigue may also help explain why the majority didn’t explain or justify whatever standard of review it applied. However, I don’t think that end-of-term fatigue can be close to a complete answer here. Apart from the fact that the standard of review is a basic question, the three-justice dissent very emphatically argued the standard of review point. So I think it is fair to infer that the other justices must have thought something (not necessarily the same thing) about the standard of review. This order was not an inadvertence.

  2. A slightly different theory

    It seems to me that the “indisputably clear” standard shouldn’t apply where, as here, there’s a circuit split on the question whether a party in a particular situation is entitled to an injunction. That makes this case quite different from most (all?) of the cases the dissent cited, where the only split was on the merits of the applicant’s claims. The Court exists in large measure to resolve circuit splits, so something more like the standard normally used for a stay application should apply where the lower courts can’t agree about whether to issue an injunction.

  3. Pingback: “What Standard of Review Did the Court Apply in Wheaton College?” | Internet Tax Lawyers

  4. My amicus brief in Mersino, a 6th circuit mandate case, is entirely about the topic of how preliminary injunctions should apply. It discusses Winter, the 2008 SC opinion on preliminary injunction standards, and Nken, the 2009 SC opinion on stay standards. The circuits are split on preliminary injunctions, because the SC left things unclear on a key point: how high must be the requestor’s probability of winning on the merits? Must it be over 50%— in which case the injunction court has to do a lot of merits thinking itself— or just reasonably high, so that if the harm to the requestor vastly outweighs the harm to the other side from the prelim. injunction the requestor wins. This last is the “sliding scale” idea that Posner has pushed for in the 7th Circuit–WHeaton’s Circuit—- and which strikes an economist like myself as obviously correct as being good and fair.

    See

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2311834

    • Roy Englert

      Interesting comments, Eric. Yet another topic of mutual interest. I really do need to find time to read your book on game theory!

  5. Mordy

    This is an interesting and scholarly analysis — much more so than I’ve seen elsewhere. Can you please address FRCP 65’s requirement that a bond be posted, and why that requirement may have been ignored in this case? For that matter, can there be any legitimate explanation for the Court’s failure to consider the existence of irreparable harm?

    • Mordy, the bond size would be trivial. The harm to the government is just that some unspecified number of women employees— perhaps zero, during this time period— have to pay for their own emergency contraceptvies. . Clearly, if Wheaton loses, it can afford to pay that.
      Irreparable harm is also easy. Wheaton has to pay massive fines, or have its civil rights violated. It’s hard to be compensated later for that, and I think maybe the government even has immunity when a legal rule is uncertain and the court then determines that the government has inflicted massive harm. I don’t know if they could even be repaid the fines, and having the pay the fines would be extremely disruptive— Wheaton might have to sell of assets to pay a year’s worth of fines.
      Thus, there’s no irreparable harm if the government doesn’t get its way, and big irreparable harm if Wheaton doesn’t get its way. I believe its standard for courts to balance the equities in favor of civil rights claimants in situations like this.

      • Mordy

        It may be “standard” for a court to balance the equities that way, but the Court didn’t do that here. The Court didn’t even mention any equities, much less discuss them or attempt to balance them.

        This Court (and most courts) have consistently held that money damages which a plaintiff may suffer don’t constitute irreparable harm where there is a solvent defendant who can pay those damages, once they’re determined. The United States government is the very definition of a solvent defendant.

      • Here’s what I say in my Mersino amicus brief about the qualified immunity problem. I welcome comment if I’m wrong on the law here:

        “If the party causing unlawful harm is the United States, the plaintiff can still recover money damages for civil rights violations, via a Section 1983 or Bivens suit. Not so here, however. In a case like this, the United States (or more precisely, the officer of the United States), has qualified immunity, because he is not expected to know what will happen in an uncertain legal environment:

        “We therefore hold that government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
        [Harlow v. Fitzgerald, 457 U.S. 800 (1982), in the context of a
        Bivens suit]

        The point is crucial. Even if the damage to the Mersino family were completely objective dollars and cents, they would not be able to recover monetary damages. Even if they could show that the entire value of their company was wiped out by bankruptcy due to intentional acts of a government in violation of their First Amendment rights, they would not get a cent back. All they would get is a permanent injunction commanding the government not to ruin their business a second time, should they choose to start life over. Thus, the harm is irreparable.”

  6. anon@anon.com

    (1) Breyer didn’t specifically note his vote, but neither did any of the other Justices in the 5-Justice PC majority–Breyer’s position is as clear as the others.

    (2) Do you know if the case goes away in the absence of the preliminary injunction? If the quasi-constitutional harm consists in having to submit the form, and you don’t get temporary relief from the obligation to submit the form, then maybe you submit the form and you’ve no longer got standing to seek prospective relief. Is there a damages claim?

    It strikes me that the injunction might meet the “indisputable” test if the case would go away, assuming at least some chance of success on the merits. I’d add that in “true” 1A cases, the argument for irreparable harm (in having to speak, etc.) is usually pretty easy to make.

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