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.