WASHINGTON — Justice Antonin Scalia’s absence is still palpable at the U.S. Supreme Court. But there was another notable change during yesterday’s oral argument: the role of the court’s most vocally conservative justice, in which Scalia was cast for decades, was now being played by Justice Samuel Alito.

During arguments in a challenge to the Obamacare contraception coverage mandate brought by a group of nuns and other religious nonprofits, Alito channeled Scalia’s trademark sharp-tongued wit in an effort to poke holes in the government’s argument that the health care law accommodates, not violates, the nonprofits’ religious freedoms.

“This is a case in which a great array of religious groups — and it’s not just the Catholics and Baptists and evangelicals, but Orthodox Jews, Muslim groups, the Church of Jesus Christ and the Latter-day Saints, an Indian tribe, the Church of Lukumi Babalu Aye — have said that this presents an unprecedented threat to religious liberty in this country,” Alito said.

The case involves an Obamacare accommodation that allows nonprofits like the Little Sisters of the Poor to opt out of providing employees contraception coverage by signing a form informing the government of their religious objection. The government then directs the insurer or a third-party administrator to provide such coverage directly.

All but one lower court has ruled that signing the form imposes no substantial burden on nonprofits’ religious rights, but the Little Sisters disagree — and they found a powerful ally in Alito.

Alito suggested that employees could instead obtain coverage by signing up for a “contraceptive-only policy free of charge on one of the Exchanges.”

Important side note: no such policies exist. That didn’t slow Alito down — his disdain for Obamacare was on full display.

“What type of a burden does that impose?” Alito asked. “Is it because these exchanges are so unworkable, even with the help of a navigator?”

Not since his infamous head shake and grimace at President Obama’s 2010 State of the Union address has the usually restrained Alito showed so much emotion.

The fact that the court’s swing voter, Justice Anthony Kennedy, referred to the contraception requirement as a “hijacking” indicates that Alito was persuasive, and that this case is headed for a 4-4 tie.

That is bad news in the short term for the Little Sisters, who lost at the lower court. But they gained a high court champion in the process: Sam is the new Nino.


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