Let's clear this up. When Supreme Court Justice Sonya Sotomayor denied Hobby Lobby's request for an injunction to block implementation of President Obama's Affordable Care Act employer contraception mandate, she was not acting on behalf of the entire Supreme Court.
Reports appearing last week stating that the "Supreme Court" had denied the Hobby Lobby request, may have created the incorrect impression that the full Supreme Court had issued a formal decision upholding the constitutionality of the controversial provision of the Affordable Care Act, better known as "Obamacare."
The employer contraception provision of the Affordable Healthcare Act requires employers to provide their employees with free access to birth control services and products, including abortion-inducing drugs, the so-called "morning after pill."
Declaring itself to be a religion-based corporation, Hobby Lobby has challenged the contraception provision as violating its First Amendment guarantee of religious freedom.
With the contraception provision taking full effect on Tuesday, January 1, Hobby Lobby asked the 10th U.S. Circuit Court of Appeals to issue an emergency injunction blocking the Department of Health and Human Services from enforcing it.
When Supreme Court Justice Sotomayor issued her opinion denying Hobby Lobby's request, she was actually acting in her capacity as "Circuit Justice" for the 10th U.S. judicial district.
As part of the organization of the U.S. federal court system, each Supreme Court justice, including the Chief Justice, is assigned as a Circuit Justice serving one or more of the 11 U.S. Circuit Courts of Appeals and District Courts. (See current assignment map.)
One of the primary duties of the Supreme Court's assigned Circuit Justices is to rule on requests for emergency injunctions submitted when there is simply not enough time to assemble a full panel of the district judges.
Issued in her capacity as Circuit Justice for the 10th Circuit, Justice Sotomayor's Hobby Lobby decision in no way represents the opinion of the full Supreme Court on the constitutionality of the Obamacare employer contraception mandate.
Indeed, Justice Sotomayor based her ruling on the inability of Hobby Lobby to prove that it would suffer "irreparable harm" without the injunction, rather than on the constitutionality of the contraception mandate itself.
Short of hearing before the entire Supreme Court, Hobby Lobby could continue to seek injunctions from other circuit courts serving areas in which they have stores. Should such a request be decided by a more conservative Supreme Court justice, the result could be very different.
"Even without an injunction pending appeal, the applicants may continue their challenge to the regulations in the lower courts," wrote Justice Sotomayor, "Following a final judgment, they may, if necessary, file a petition for a writ of certiorari in this [the U.S. Supreme Court] Court."