How to Think About Likelihood of Success on the Merits: Further Reflections on the Little Sisters and the Utah SSM Cases

By Mike Dorf

Updated to reflect today's SCOTUS ruling in the Utah SSM case!

My first post on the Little Sisters case generated a very fruitful discussion in the comments.  Thanks (as always) to the commenters.  In a world of internet flamery, I'm grateful that my readers so consistently disagree with one another, and with me, respectfully.  Now, on to the latest development.

The plaintiffs in the Little Sisters case have now filed their reply to the government's brief.  The reply makes a number of arguments.  The key disputed question is what exactly is the effect of signing the form that religiously affiliated entities (but not churches and their like) such as the plaintiffs must sign in order to get their exemption.  The government argues that signing the form does not authorize the provision of contraception via health insurance for employees; it just authorizes the exemption.  The plaintiffs disagree.  For reasons that Marty Lederman nicely spelled out (and then amplified) on Balkinization, I find the government's view more persuasive.

Still, as I noted in comments and some off-list replies to email queries, I think that even if the Little Sisters plaintiffs should not get a stay, the case raises an interesting and sometimes difficult question: How should courts evaluate religious claims to opt out of what the claimants regard as participation in what the claimants regard as evil (or at least religiously prohibited)?  I'll take up that puzzle in my next Verdict column, which will run on January 15.

Meanwhile, I want to examine another of the arguments made in the Little Sisters reply. The reply notes that, depending on what counts as a sufficiently similar case, in either 18 of 19 or 6 of 7 cases presenting the same issue, lower courts granted injunctions.  This very high winning percentage is offered as a reason for the Supreme Court to "standardize" the state of play while awaiting final adjudication--which is not technically a factor that enters into the test the Court is supposed to apply--but the argument appears in a section of the reply brief that argues that it is "indisputably clear" that the plaintiffs' rights will be violated absent the injunction.  That is part of the legal test.  What the plaintiffs appear to be arguing is that they are very likely to prevail on the merits because they have thus far nearly always prevailed on the merits.

Is that a persuasive argument?  We can imagine circumstances in which it might be.  If a judge is asked to issue an emergency injunction and has very little time to decide the question, then she might sensibly look to how other judges have resolved the question as a proxy for the strength of the case--especially if the issue is complicated.  Arguably, that was the position in which Justice Sotomayor found herself on New Year's Eve: She wanted to get to NYC to push the button to make the ball drop in Times Square and so she rushed through the papers.  I don't know that Justice Sotomayor used the track record of plaintiffs in similar cases as a proxy for likelihood of success on the merits, but if she did so under time pressure, that would not have been unreasonable.

But at this point it's not at all clear that the track record of plaintiffs in the lower courts should matter. Although the parties disagree about how to characterize the causal relationship, if any, between the plaintiffs' signing the certification and their employees receiving contraception insurance coverage, that is a disagreement about a legal question. If the Justices have enough time to consider the issue--as they now do--they do not owe the lower courts any deference on a question of law.  Instead, in figuring out the likelihood that plaintiffs will ultimately succeed, the Justices should simply apply their own best legal judgment.

The same point holds with respect to the question of whether to grant a stay pending appeal in the Utah same-sex marriage case.  Whether the state is likely to prevail on the merits is a question about whether the Utah law violates the Constitution.  To be sure, it's possible that after the 10th Circuit rules, the Supreme Court would deny a petition for a writ of certiorari, and thus one could think that the Supreme Court ought to calculate the likelihood of success on the merits by asking what likelihood each side has of succeeding in the 10th Circuit, what likelihood there is that they will grant cert, what likelihood there is that they will resolve it each way, and then summing the respective probabilities.  But that's pretty clearly not what courts do.

Indeed, in a law review article I published nearly 20 years ago, I argued that even lower court judges aren't supposed to apply the law by "predicting" what the Supreme Court will do.  They're supposed to apply Supreme Court precedents (and other sources of law) according to their best understanding of the law.  And in fact that's what they almost always do.

That explains why the granting of a nominally preliminary injunction is often tantamount to a decision on the merits. If the chief dispute between the parties is over a legal question, then in deciding whether the party seeking relief is likely to prevail on the merits, judges are saying whether they will likely rule for or against that party.

So, to return to the Little Sisters case, the fact that the lower courts have overwhelmingly granted (mostly preliminary) injunctive relief to similarly situated plaintiffs may have been a useful proxy for a hurried Circuit Justice, but it is no longer relevant to the Court's deliberations.  That's not to say, however, that it's irrelevant to how the rest of us predict what the Court will do. It was partly based on the surprising success of these cases so far in the lower courts that I told Politico that I could see the Court backing the Little Sisters plaintiffs. I think the plaintiffs should lose, but I know enough to know the difference between what I think the law requires and what I think the Court will do.

NB: The SCOTUS today stayed the district court's SSM ruling w/r/t Utah.  Because the order provides no reasoning, it is not possible to tell whether the Justices took account of the likelihood of success in the 10th Circuit.