In just a few hours, we will know the Supreme Court's decision in the Hobby Lobby case. Given the lawsuit's culture war intrigue, its challenge to the Affordable Care Act, and its religious freedom implications, the case has generated and sustained widespread interest and controversy.
Advocates on both sides are, presumably, prepared to accept the finality of the justices' decision. Yet I sense that few people have thought deeply about how judicial decisions are made. The most commonly held view is that justices consider the legal merits of the case at hand and make objective, dispassionate rulings. Scholars who study these questions have found overwhelming evidence, however, that judges do not (cannot?) separate their own opinions and values from their rulings. This is no knock against judges. It is just an acknowledgement that no one can be completely objective. The prerogative to use your power to ensure your preferred outcomes is practically irresistible, even for Supreme Court justices (see: Bush v. Gore).
Models of Judicial Decision Making
This diagram by University of Georgia political scientist Jamie Monogan succinctly describes three frameworks for judicial decision making:
The legal model is the quaint view that most people hold. Do not confuse it with the principle of strict constructionism, whose adherents are just as prone to insert personal opinions into their judgments.
The attitudinal model holds that Supreme Court justices are unelected, unaccountable, life-tenured personal policy preference maximizers. In this framework, justices manufacture rulings that codify their preferred policy outcomes. Significantly, this model recognizes the importance of ideology as a foundational social and political identity. Ideological thinking is particularly pronounced among educated politically-interested partisans – including, of course, Supreme Court justices.
As is often the case, the truth lies somewhere in the middle. Thus the strategic model depicted above begins with ideological preferences, but also recognizes judges' need to rule using the language and methods of legal analysis.
As with any group of people (survey respondents, Members of Congress, etc.), we can measure and estimate Supreme Court justices' ideological preferences along a left-right continuum, as several prominent scholars have done at voteview.com:
Predicting the 2012 Obamacare Ruling
In a 2011 article in which they correctly predicted that the Supreme Court would uphold the Affordable Care Act in 2012, Professors Michael Bailey and Forrest Maltzman explain that ideology alone is not always sufficient to predict justices' votes. If ideology was all that mattered, the individual mandate would have been struck down, 5-4.
But there is more to the story. According to Bailey and Maltzman, not only must we estimate justices' preferences along an ideology dimension, we must also account for another dimension. They call this "precedent." Apart from ideology, justices vary in their deference to established law and precedent. In Bailey and Maltzman's example (the 2012 ruling upholding the ACA), estimating the justices' preferences along two dimensions helped explain why a decision to uphold the mandate was likelier than a purely ideological vote to strike it down.
Though their model had 4 votes to overturn as the highest predicted probability, Bailey and Maltzman forecast that only 2 or 3 justices would vote to overturn the ACA. They thought Justice Kennedy's deference to precedent would lead him to side with Justices Ginsburg, Breyer, Sotomayor, and Kagan. In this case, Chief Justice Roberts would join the winning side so that he could write the opinion himself. They also suggested that Justice Alito may even join the majority.
As it turned out, the vote was 5-4 to uphold, with Chief Justice John Roberts siding with the court's four liberals but crafting an opinion that narrowly affirmed the individual mandate without dramatically reshaping Commerce Clause jurisprudence.
Predicting the Hobby Lobby v. Sebelius Decision
All of these factors shed light on the justices' dynamics in Sebelius v. Hobby Lobby. The recent string of unanimous decisions is an aberration. Even the narrowest conceivable ruling would, in this case, produce conflict among the justices. The four liberals are likely sympathetic to the idea that you cannot impose the costs of your religious practice onto others (in this case, female Hobby Lobby employees). The conservative majority (Justices Scalia, Kennedy, Thomas, Alito, and Chief Justice Roberts) is clearly sympathetic to Hobby Lobby's claims. These five (Catholic, male) justices will find a way to create a religious exemption to the contraception mandate, even if it means issuing a narrow ruling that applies only to, say, privately held corporations like Hobby Lobby.
Some (if not all) of the conservative justices would prefer to use the case as an opportunity to codify generous religious exemptions from many kinds of laws. With Justice Kennedy on board, the Court could accomplish this. Kennedy did, after all, vote with the court's three most conservative members to strike down Obamacare. But, as Bailey and Moltzman noted, Kennedy's adherence to precedent moves him from his ideological preference to a much greater degree than the other conservative justices. With no strong precedent for considering corporations, especially publicly held ones, "persons" under the 1993 Religious Freedom Restoration Act, it seems unlikely to me that Justice Kennedy would go along with his colleagues' desire to issue a landmark decision giving all employers wide latitude to opt out of whatever laws they feel violate their religious beliefs.
It also seems unlikely that Justice Kennedy would join the court's four liberal justices in upholding the government's position. I'm not even sure all four of the liberals will find that the government has a compelling interest in forcing private employers to violate their religious beliefs and, even if it does, that the HHS Mandate is the least restrictive means of doing so.
In a case like this, the breadth or narrowness of the decision will be as consequential as which party wins or loses.
A broad decision for Hobby Lobby would be 5-4, with the four liberals dissenting. The same majority that decided in Citizens United v. FEC that corporations can exercise free speech rights granted to individuals in the Constitution could conceivably extend that logic to the realm of religious freedom.
One or two liberals may join the majority in a narrow decision for Hobby Lobby. If the scope in this ruling is limited, the Court's liberals will have future opportunities to rule against transferring the protections that the RFRA intended for individuals to public corporations, boards, and shareholders. This outcome seems likeliest to me.
A ruling for the government would almost certainly be 5-4, but this is unlikely given the current makeup of the Court. Such a decision might bring Justice Kennedy along, though we would more likely see Chief Justice Roberts join the majority and keep the opinion out of the liberals' hands. This is exactly what happened in the 2012 Obamacare decision.