Does Notre Dame Have a Prayer?

Yesterday, in a brief order published at the head of an otherwise miscellaneous list, the Supreme Court made a summary disposition of University of Notre Dame v. Burwell, the case involving the university’s resistance to the HHS contraception-sterilization-abortifacient mandate under Obamacare. Here is the whole of what the Court said:

The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Seventh Circuit for further consideration in light of Burwell v. Hobby Lobby . . . 

This has been the cause of much celebration, with Mark Rienzi of the Becket Fund and Matt Bowman of the Alliance Defending Freedom both hailing the “GVR” (grant, vacate, remand) order as a sign that the Supreme Court is inclining to side ultimately with Notre Dame in its challenge to the mandate.

I hope they are right, and since they are smart lawyers as well as staunch advocates, they make me hopeful. But the Seventh Circuit panel (in an opinion by Judge Richard Posner) decided the Notre Dame case, against the university, in late February 2014, four months before the Hobby Lobby decision by the Supreme Court. In almost no respects did Posner’s incompetent, hostile opinion track with the salient features of the Court’s Hobby Lobby decision. Requiring the circuit to undertake a do-over “in light of” Hobby Lobby is therefore no big surprise, even with this kind of summary disposition. But the circuit court could—never underestimate the creativity of judges—produce a new decision echoing the ratio decidendi of Hobby Lobby and still rule against the university, simply necessitating a return to the Supreme Court for further review. And what would happen then? Maybe something very good, maybe not. So stay tuned, folks . . .