In early 2012, Jones Day lawyers contacted dozens of Catholic organizations.1 The attorneys posed a version of the same question: Would your diocese or university or church be interested in filing a lawsuit? The law firm was hatching a coordinated national campaign to undercut the new national health care law.
Jones Day by then had a long track record of representing Catholic causes, a tradition that had taken hold under Pat McCartan. A man of faith, McCartan in 1989 had joined the board of trustees of the University of Notre Dame, where he had earned his undergraduate and law degrees. He served as the chairman from 2000 to 2007, and as he stepped down the university awarded him the Laetare Medal, considered the most prestigious honor available to American Catholics. “You have walked the corridors of power while still remaining on the path of the good, the true, and the just in all your pursuits,” the citation read.2
On McCartan’s watch, Jones Day began advising Catholic dioceses and other organizations that faced an existential crisis: For decades, priests had been sexually abusing children; the Church had often tried to bury the evidence, protect the predators, and minimize the public fallout.
In 1997, after a Texas jury awarded a group of former altar boys and their families a $120 million judgment against the Roman Catholic Diocese of Dallas, Jones Day worked to shield the assets of the sixty-six Dallas parishes. At least partly as a result, the plaintiffs ultimately collected about one-fifth of what the jury had awarded.3
Four years later, Jones Day represented the Cleveland diocese, whose bishop, Anthony Pilla, was close with McCartan.4 The Cuyahoga County Prosecutor’s Office in Cleveland was conducting an extensive criminal investigation into potential sexual abuse by hundreds of priests and others connected to the Church. The seven-month grand jury inquiry5 wrapped up in 2002 with indictments of a retired priest and six employees of a diocesan treatment center. The reason there weren’t more charges wasn’t for lack of evidence. The prosecutors had uncovered allegations against 145 priests. The problem was that so many years—in some cases, decades—had passed since the abuse took place, far exceeding the statute of limitations.6
But there still was a chance to hold to account those accused of rape and other crimes as well as those who had buried the allegations and kept the priests on the Church’s payroll. The county prosecutor, William Mason, said he planned to open his office’s files—which filled several hundred binders—for public consumption.7 Finally, Clevelanders would get to learn which priests had been accused of abuse—and what if anything the Church had done about it.
Then Jones Day intervened. The lawyer on the case was Stephen Sozio, who had joined the firm two years earlier after a decade as a federal prosecutor pursuing organized crime. Now Sozio tapped out a letter to Mason, warning that the investigative files contained “highly confidential, personal, and intimate information” and therefore needed to remain secret; if they didn’t, Jones Day might sue.8 Rather than fight with Cleveland’s highest-powered law firm, Mason backpedaled. The files would never see the light of day.9 Around that time, Pilla, who was facing calls to resign as bishop, was spotted watching an Indians game from Jones Day’s luxury box at Jacobs Field.
The firm’s work for Catholic institutions and causes accelerated under Brogan, himself a Notre Dame alum and trustee. Several of Brogan’s allies told me that the key to understanding him was through his faith. “Brogan is extremely conservative, hard-core Catholic, and that is the bedrock of who he is,” one of his Jones Day confidants, himself a practicing Catholic, explained.
Now this conservatism was seeping into the culture of Jones Day, and the firm began to shed its wariness about overt partisan politics. The landscaped rooftop of the firm’s Capitol Hill building had become a regular venue for Republican campaign fundraisers, with top Jones Day partners—including Brogan—playing host to politicians like John Boehner and Mitch McConnell.10 (There were occasional Democratic events, too, but not with the participation of the firm’s top leaders.) While the firm’s rank and file may have leaned left, an academic paper around this time found that Jones Day was the most ideologically conservative of the leading national law firms, based on surveys with thousands of lawyers.11 Brogan didn’t feel the need to be discreet with colleagues about his disdain for the Left. Once, on a golf outing in London, a partner, Sebastian Orton, made the mistake of mentioning to Brogan that his wife worked for a local Labour Party group. Orton told me that Brogan started squawking about the evils of socialism.
In the spring of 2012, Mitt Romney was emerging as the Republican nominee to challenge Barack Obama for the White House. Obama’s signature legislative achievement—the Affordable Care Act, otherwise known as Obamacare—promised to be a central flashpoint in the general election. Republicans were looking for any vehicle to attack it. One such avenue was the law’s requirement that employers’ health plans cover the costs of their workers’ birth control.
And so Jones Day lawyers were fanning out to Catholic groups, offering to represent them pro bono12 in lawsuits challenging the contraception mandate. That spring, the firm filed twelve lawsuits on behalf of forty-three different Catholic entities, including Notre Dame. “It’s a firmwide commitment,” a Jones Day partner said at the time. “The leadership came from Steve Brogan, who is a trustee of Notre Dame. He feels quite strongly about the issue, as does Jones Day.”13
The Obamacare lawsuits were the handiwork of an elite and increasingly powerful group within the firm. It was called Issues & Appeals.
McCartan had established the team in the late 1980s. The idea of a law firm having a practice that handled appeals wasn’t new, but McCartan had a bolder vision. This group would be the brain trust for the firm’s litigators. Instead of focusing primarily on how to win over a judge and jury, the firm would assemble teams to peer into the future and try to structure arguments that would set the stage for successful appeals, if Jones Day lost the initial trial. Eventually, this troupe would develop expertise in broad areas of the law, enabling its lawyers to take on causes, not just clients.
For most of its first decade of existence, the group was led by a left-of-center lawyer named Tim Dyk. He was surrounded by an impressive crew, including a handful of future federal judges and a prominent Reagan administration lawyer, Don Ayer. The group developed a reputation internally as consisting of the best and the brightest. Lawyers in Issues & Appeals did the toughest strategic thinking and drafted the most important briefs. Dyk himself argued eight cases before the Supreme Court during his decade at Jones Day.
In 2000, President Clinton appointed Dyk to a federal appeals court. Until this point, Jones Day had tolerated—even celebrated—a wide range of political opinions, even if its managing partners almost always were Republicans. Some of the firm’s most prominent lawyers, including Herb Hansell, the former Carter aide, were Democratic activists. Now Dyk was gone, and the arrival of a conservative firebrand named Mike Carvin would augur the end of that bipartisan era—for Issues & Appeals and for the firm as a whole.
Carvin grew up in a middle-class Catholic family in the New York City suburb of Port Chester, best known, perhaps, as the longtime home of the Life Savers Candy Company. His father was a textile salesman, and his mother was a homemaker.14 By age twelve, Carvin was a conservative; he viewed liberal politics as irrational and anti-American.15 By young adulthood, his worldview had hardened. Over beers, he would seek out political fights, his voice thundering through a noisy bar. “Carvin is the guy who you wish the bartender had cut off,” one of his colleagues told me.
A history major, Carvin decided to go to law school after realizing “that I had no marketable skills,” as he put it.16 He got his law degree in 1982 and then was hired into the Reagan administration by Chuck Cooper, a deputy assistant attorney general in the Justice Department. At Justice, Carvin met Don Ayer, who was the deputy solicitor general. The men clashed over what to do about racial discrimination. Ayer supported proactive efforts to force public sector employers to hire more minorities. Carvin was dead-set against anything that smacked of quotas. The two men had heated arguments.
One night in 1984, Carvin went to Robert F. Kennedy Memorial Stadium in D.C. for a Michael Jackson concert. A group from Reagan’s reelection campaign happened to be there, too, and a young staffer named Mary Matalin spotted Carvin. With a mane of thick hair and an air of bravado, he was holding court between sets, oozing self-confidence. He and Matalin spent the evening talking, and soon they started dating. They’d be together for the next seven years. “If you couldn’t have fun with Michael Carvin, go get electric shock therapy,” Matalin gushed.17
Matalin was a fighter, and she was accustomed to being with men who were fighters, too. As fiery as Carvin was when talking politics, he could be maddeningly calm when it came to personal drama. “I would provoke him all the time, and he’d just laugh,” Matalin told me. Once, she needled her boyfriend so much that he stalked into their bedroom, picked up the king-sized mattress, hauled it into the living room, then dragged it back. That was it. “He just didn’t waste his emotional energy on emotional things.” Matalin thought Carvin might end up on the Supreme Court. (She later left him for James Carville.)18
As the Reagan administration wound down, a few big law firms tried to hire Carvin and Cooper. One was Jones Day. Cooper told me that the pair flew to Cleveland to meet McCartan, but they ultimately decided to go to another firm. There, they successfully represented Winstar Corporation in a landmark Supreme Court case in 1996.* The victory made Cooper a minor celebrity in Republican legal circles, and he and Carvin decided to create their own conservative law firm, Cooper & Carvin. Its motto was Vincere aut Mori—“Victory or Death.”19
The first associate they hired was a cocky young lawyer named Ted Cruz, fresh off a clerkship for Chief Justice William Rehnquist. In 1998, when Cooper & Carvin was in the market for another associate, Cruz recommended a Scalia clerk named Noel Francisco. (Cruz and Francisco had previously clerked together for Michael Luttig, a conservative icon on D.C.’s federal appeals court.)
Francisco—the same lawyer who, decades later, would write the letter on RJR’s behalf to officials in Marion, Massachusetts—was the son of a Filipino immigrant.20 He credited his Catholic upbringing in Oswego, a working-class city in upstate New York, for shaping his conservative philosophy.21 Cooper and Carvin set out to hire him. To help win him over, they got Luttig and Scalia to vouch for their upstart firm. If you were an ambitious young conservative like Francisco, there was no way to say no to these two legal lions. Francisco was in.
In late 2000, with the presidential election hanging in the balance, Cooper and Carvin dispatched Francisco to Tallahassee to help the Bush campaign on the Florida recount. Ted Cruz was already there, working for the Republican candidate. As the battle went to the courts, Cruz enlisted Carvin to argue Bush v. Gore at the Florida Supreme Court, a prelude to the main fight at the U.S. Supreme Court, which delivered Bush the White House.
While Francisco and Cruz joined the new administration, Cooper and Carvin had a falling-out over the direction of their firm. With Steve Brogan’s backing,22 Carvin in 2001 was lured to Jones Day’s Washington office as a partner in Issues & Appeals. Some lawyers at the firm had misgivings; Carvin had a reputation as a hothead. During a conversation among top Jones Day partners, one of them voiced concerns about Carvin’s “rough edges.” Brogan was ready with a response: “We’ll smooth those out of him.”
Don Ayer groaned when he learned of Carvin’s arrival. He remembered the pitched battles in the Reagan administration over what had always struck him as fundamental issues of right and wrong. Ayer, a moderate Republican, worried that Carvin would cause the firm to lurch to the right.
Year by year, case by case, hire by hire, Jones Day was growing more ideological. Archconservatives were gravitating to Issues & Appeals like iron filings shimmying toward a magnet. Carvin, for his part, celebrated his freedom to champion polarizing causes. “I’ve done a lot of controversial cases and not gotten heat” from Jones Day, he told the American Lawyer,23 which cited his work in opposition to gay marriage. “I’m beyond redemption,” he smirked.
Carvin liked to tell colleagues how, after the 2000 election, he had bumped into the Democratic lawyer Vernon Jordan. “How does it feel to steal an election?” Jordan asked.
“It feels pretty good!” Carvin gloated, not missing a beat. Some liberal Jones Day lawyers were surprised to hear Carvin telling and retelling the tale, as if it made him look good.*
In 2005, a few years after Carvin joined, Noel Francisco came aboard. Francisco by then was prominent in Washington conservative circles like the Federalist Society. Jones Day’s size and stability appealed to him; it didn’t hurt that he’d be rejoining his friend Carvin, whom Francisco regarded as one of the country’s sharpest lawyers.24
Barely a year after Francisco arrived, Jones Day promoted a lawyer in its Columbus, Ohio, office into the partnership and assigned him to Issues & Appeals.25 His name was Chad Readler, and he was a hard-liner. He had argued against a ban on the death penalty for juveniles.26 At another point, Readler—whose mother had been an elementary school teacher27—called for eliminating language in Ohio’s constitution that effectively required the state to provide an adequate system of public education.28
Readler, Francisco, and Carvin were already well-known throughout the conservative bar. Now, working together, their stars would soar to new heights.
Each spring, bundles of envelopes arrive in the chambers of the justices of the Supreme Court. They are addressed to the clerks—four per justice (and one each for retired justices). Inside are letters from the biggest of Washington’s law firms, including Jones Day. Would you please join us for dinner with some of our most esteemed partners? The invitations are the beginning of an elaborate courtship that often ends with young clerks taking lucrative jobs at corporate law firms. Some firms are in the market for a single clerk. Others, like Gibson Dunn, Kirkland & Ellis, and WilmerHale, are looking to hire a few. Jones Day wants as many as it can get.
This seasonal mating ritual has been going on for decades, intensifying with each passing year. The allure of hiring clerks was multifaceted. These young men and women, traditionally toting Ivy League diplomas, were smart and ambitious and had gleaned rare insights into the inner workings of the nation’s most important judicial body. But the biggest draw was their marketing power. In pitch documents to would-be clients, firms bragged about how many ex-clerks they employed.29 General counsels of big corporations—the lawyers who handed out assignments to various outside firms—liked nothing more than hiring a firm with a high-profile Supreme Court practice and a passel of former clerks. Why? Because it provided cover if anything went wrong. Who could blame a general counsel for having hired such a gold-plated law firm?
To attract clerks, Jones Day and other firms began dispensing ever-larger signing bonuses. By 2000, the industry standard was about $100,000.30 Within a decade or so, the bonuses had tripled. (Today they are more than $400,000.)
Jones Day quickly emerged as the leader in this unusual race. From 2011 through 2015, the firm hired a total of about thirty Supreme Court clerks, far eclipsing any of its rivals.31 Of the ninety clerks I was able to identify Jones Day having hired since 1990, more than 70 percent came from the court’s conservative justices.
The outlandish bonuses and the concentration of clerks at a single firm troubled experts. “When the numbers get so high—in terms of the bonus itself and the numbers of hires going to one firm—it unavoidably raises concerns about what is being purchased and the meaning of public service,” a Harvard Law professor remarked after Jones Day lured ten Supreme Court clerks in a single year.32
But Jones Day lawyers were not the types to care much about criticism from the outside world. Sure, the signing bonuses meant the clerks in their first year were paid more than double what the justices themselves earned, but it was worth it. “It’s really not that much money for the return a firm like ours gets,” a partner, Glen Nager, said.33
Each fall, Jones Day gathered the new recruits on its roof for a group photo, with the Capitol dome as a backdrop. The photo would appear prominently on the firm’s website and would be sent to trade publications like the American Lawyer,34 which would dutifully write stories about how Jones Day once again had netted the most clerks. Those articles were as good as gold (or at least as good as paid advertisements) when it came to attracting new corporate clients. “There’s going to be a number that’s too high, but I haven’t gotten there yet,” Beth Heifetz, the Jones Day partner in charge of recruiting the clerks (and herself a former clerk), told Reuters in 2014.35 Here was another surprising repercussion of the long-ago Bates decision: What would be the point of snapping up all this expensive young talent if you weren’t allowed to boast about it?
The clerks generally were stationed in Issues & Appeals. By the time the hiring bonanza was in full swing, Mike Carvin was scooping up many to work on what he considered the best projects, which often happened to be the ones nearest to his ideological heart. These clerks were told—maybe not in so many words, but the message was clear—that it was okay not to make money for the firm; nobody would be scrutinizing their billable hours. Their mandate was to add value. Promote a cause. It was fine if the work was pro bono—representing a religious institution or an advocacy group, for example. Increasingly, in this rarefied section of the firm, money wasn’t what mattered. The mission was.
Around the corner from Jones Day’s Capitol Hill building was the Washington headquarters of Fox News. The law firm and the TV network had a good relationship. When construction was underway on Jones Day’s parking garage—part of the project that had been delayed by police concerns about creating a rooftop sniper’s nest—Fox let the law firm use its underground lot; Fox and Jones Day employees would share elevators up from the basement. Fox executives and on-air personalities would sometimes go to cocktail parties on Jones Day’s roof deck. Adding to the bond, Megyn Kelly, then a Fox News anchor, had been an associate at Jones Day. (The work was so exhausting that Kelly at one point fantasized about crashing her car so that she’d get a break from the eighteen-hour workdays.36 She soon abandoned the law for a career in TV news.)
Fox News was not just a friend; it was also a client. In the early days of the pandemic, Jones Day successfully defended the network when a nonprofit group sued Fox for claiming that Covid was a hoax, a lie that slowed the government response to the crisis and almost certainly killed people.37 And the firm shielded Fox and some of its stars when they faced allegations of sexual harassment and defaming victims of assault.38
Mike Carvin was among the lawyers representing Fox News. It was one of his ostensibly apolitical clients. Many others were openly ideological. There was the Republican National Committee, which he assisted on redistricting cases. There was the right-wing Free Enterprise Fund, which Carvin and Noel Francisco represented in an unsuccessful attempt to neuter a government-controlled corporate oversight board.39 And there was the Buckeye Institute in Ohio, funded by the Koch brothers. Carvin paired up with Readler, the partner in Columbus, to file briefs on Buckeye’s behalf in support of limiting the scope of the federal Voting Rights Act and in opposition to an Ohio law expanding early voting.40 Other Jones Day lawyers helped advance Buckeye’s argument that the existence of the Consumer Financial Protection Bureau violated the Constitution.41
Jones Day was representing Buckeye and the Free Enterprise Fund on a pro bono basis. Some partners found this troubling. The American Bar Association says pro bono work is supposed to be “for the public good . . . with an emphasis that these services be provided to people of limited means or nonprofit organizations that serve the poor.”42 Buckeye and the Free Enterprise Fund had wealthy backers and could easily afford to pay for the time of Carvin and his colleagues. Classifying such work as pro bono burnished these lawyers’ images as public-spirited professionals.*
Jones Day, meanwhile, was increasingly entwined with the Federalist Society—the powerful group Scalia had helped establish before he became a judge, with the goal of implanting more conservatives on the nation’s courts. By 2010, dozens of the firm’s lawyers were speaking regularly at Federalist Society events. Francisco at times was averaging about one speech a month.43 (“I always say yes to the Federalist Society,” he said at a Federalist Society event.44) Jones Day’s D.C. offices became a popular venue for the group’s gatherings. The law firm’s marketing staff, worried that this might spook certain clients, made sure to remove Jones Day’s logo before events to avoid it ending up in the Federalist Society’s promotional materials.
Lawyers like Francisco viewed their jobs as fitting neatly within their worldview that the government had expanded far beyond what the framers of the Constitution envisioned. Government control—including regulations meant to protect public health or the environment or workers’ rights—was often something to fight against. “The government’s tentacles invade virtually every aspect of what our clients do,” Francisco once said.45 “The job of a lawyer and the job of courts is to ensure that the federal government lives within the limits that our Constitution sets, and I love making sure that those lines are enforced.”
McCartan’s vision of the Issues & Appeals practice had made sense. Who could argue with setting up a group that would help trial lawyers lay the groundwork for successful appeals? Now the practice was morphing into something else. Less of its work had much to do with helping longtime clients deal with litigation. It was increasingly about championing conservative causes. Jones Day still had many liberal lawyers, but the firm’s power center—and the practice area in which its lawyers were most likely to publicly take a political side—was rapidly moving to the right. To some partners in Washington and Cleveland and Columbus, it felt like Jones Day wasn’t just representing conservative think tanks; one had been embedded in the heart of the firm.
Some Jones Day leaders claimed to me that the firm was not conservative. “The notion that the ideological heart of the firm is conservative is just not true,” Carvin asserted. “We have an incredibly diverse and broad array of lawyers and, I suspect, the majority tend towards the liberal side of the spectrum.” He insisted that Jones Day doesn’t take on causes. “We represent clients with legal needs, often in conflict with various governmental entities, regardless of the political affiliation of the government’s leadership,” Carvin said.
There is nothing inherently wrong with a law firm or any other private enterprise leaning heavily to one side or another of the political spectrum. Nobody was forcing liberal lawyers to keep working at Jones Day, and clients that didn’t want to be associated with its political work were free to choose another law firm. But asserting that Jones Day wasn’t conservative didn’t make it true.
In early 2015, a writer named Jessica Shortall was trying to get companies in Texas to sign a pledge promising not to discriminate against people on the basis of their sexual orientation. Shortall had a business degree and had done consulting work for companies, and she believed that most had decent values. If she could get them to publicly articulate those values by vowing not to engage in discriminatory hiring practices, she hoped it would foster a healthier, safer climate for LGBTQ+ people across the state. That, in turn, would help Texas soften its reputation of being inhospitable to people who didn’t fit the Lone Star State’s macho cowboy vibe. And that ultimately would make Texas a better destination for skilled workers and ambitious companies. Shortall dubbed her initiative “Texas Competes.”
The key was to build momentum, and Shortall came up with the idea of allowing companies to sign on to the pledge privately before the effort went public. That way, no individual company would have to worry about being singled out—it would happen as a group or not at all—and anyone that was uncomfortable would have the option to back out if they got cold feet.
Shortall knew a lot of people in the business community, and now she hit them up. One of them was Elizabeth Myers, a partner in Jones Day’s Houston office. Myers liked the idea of Texas Competes; she was one of the few openly gay partners at Jones Day, and she figured this was one small way to make things a little less lonely for people like her, at Jones Day and elsewhere. Myers approached her bosses in Texas to get their buy-in. They readily agreed to sign the pledge. It wasn’t a hard sell. Of course we promise not to discriminate!
Myers told Shortall that Jones Day was in. It was one of a handful of law firms with Texas offices that would be among the founding signatories to Texas Competes.
In April 2015, it came time for the list to be made public. As promised, Shortall gave everyone one last chance to escape. That was when Myers heard from the head of Jones Day’s Houston office. There was bad news. The firm would not, after all, be signing the pledge. Word had come from Brogan’s office: We don’t sign petitions. Myers was mortified—and angry. This wasn’t even a petition; they were just publicly promising not to discriminate.
Myers broke the news to Shortall, who removed Jones Day from the list. Of the more than fifty companies that had initially agreed to sign the pledge, Jones Day was the only one to pull out. When the initiative was announced, hundreds of companies rushed to add their names. Before long, the list had grown to more than 1,400 companies. Basically every major business with a presence in the state, including a slew of national law firms, had signed the pledge. Except for Jones Day.
By the time the Jones Day lawyers had started lining up Catholic groups to sue over the contraception mandate in the Affordable Care Act, the firm was already leading a multifaceted assault on the health care law. The American Lawyer, in an article detailing the firm’s willingness to brawl with the government, described Obamacare as “Jones Day’s Moby Dick.”46
In one case, Jones Day submitted a legal brief on behalf of three former Republican attorneys general who wanted to kill the health care law. In another, Carvin represented the National Federation of Independent Business as it sued to invalidate the Affordable Care Act’s foundational requirement that all individuals have health insurance.47 Of the seven cases Carvin had argued before the Supreme Court, this was his first defeat.48
Carvin also represented the Competitive Enterprise Institute, another corporate-backed conservative group, as it sought to get Obamacare’s insurance exchanges knocked down by the courts, a challenge designed to cripple the program. This case, too, went to the Supreme Court. At oral arguments in 2015, Carvin, in classic form, spoke so fast that justices at times struggled to get a word in. “Take a breath,” an exasperated Sonia Sotomayor urged him.49 Carvin lost again.
The contraception cases were less consequential—unlike the other suits, these didn’t threaten to strip millions of Americans of their health insurance—but they had the longest legs. Noel Francisco was in charge of the effort, and he had been deliberate about how the plaintiffs were picked for these lawsuits. They included a group of nuns and “inner city” Catholic schools, he would later explain to an audience at the conservative Heritage Foundation.50 When plotting constitutional challenges on hot-button social issues, Francisco advised the audience, “focus on the florist, on the baker, the sincere small businessmen under attack.”
The contraception lawsuits, filed in federal courts around the U.S., had bounced through the judicial system. Some got thrown out, others advanced, and ultimately they were consolidated into a single case: Zubik v. Burwell. David Zubik was the bishop of Pittsburgh. Sylvia Burwell was the U.S. Health and Human Services secretary, whose department was responsible for the health care program. In November 2015, the Supreme Court agreed to hear the case; oral arguments were scheduled for the following March.
About a month before the arguments, history intervened. Justice Scalia had flown to a remote corner of the West Texas desert to attend a small party at the thirty-thousand-acre Cibolo Creek Ranch. After dinner on Friday night, he excused himself and retired to the presidential suite. The following morning, February 13, Scalia didn’t show up for breakfast. The ranch’s owner went to check on him. He found the seventy-nine-year-old jurist in bed, his hands folded above the sheets, dead.51
For many conservatives—not least his former colleagues and clerks at Jones Day—Scalia’s sudden death felt like a body blow. “Justice Scalia did not just defend our view of the law, though he did that superbly,” Francisco eulogized a short time later, fighting back tears.52 “He defended our view of the world, and he did it better than anyone else. And that, I believe, is why we were broken, broken to the core, when we heard the terrible news.”
Among the many consequences of his death was that the Supreme Court now had only eight justices, allowing for the possibility of deadlock. And that is where it looked like Zubik v. Burwell was heading when, on a balmy Wednesday in March, the Supreme Court heard the case. The U.S. solicitor general, representing the Obama administration, pointed out that religious institutions were already partly exempted; those that didn’t want to offer birth control were allowed to inform the government or their insurers of their objections, and any contraception costs would be covered by third parties. That didn’t do it for Francisco, who still perceived the Obama administration as coercing Catholics to condone contraception and “to violate their sincerely held religious beliefs.” (He also said it wasn’t clear “how many women out there actually lack access to contraceptive coverage.”) From their questions, it was clear that the court’s four liberal justices were skeptical and the four conservatives were not.
The court issued its ruling—if you could call it that—about eight weeks later. There had recently been a few four-to-four ties (in the case of a tie, the lower court’s ruling stands, but no precedent is set), and the court in Zubik opted for a different route. It released a rare unsigned statement saying it would not decide the case. Instead, it instructed the plaintiffs, the Obama administration, and the lower courts to try to find a compromise that addressed the Catholic groups’ concerns while also ensuring that their female employees got adequate health care coverage, including contraception.
And so settlement talks got underway, in the heat of the presidential election. The negotiations immediately proved contentious; there was no love lost between the Obama administration and the Catholic groups’ hard-charging attorneys. Mickey Pohl, a Jones Day partner, that summer publicly accused the Obama administration of “assaults on freedom of religion” by pushing the plaintiffs’ insurers to provide the disputed coverage.53 It soon became clear that the case wouldn’t be resolved during the Obama administration. The battle would pass to the next president.