Supreme Court Punts Second Case Due To Paralyzing Split

The U.S. Supreme Court refused to rule in the controversial religious liberty case on Monday. Instead it asked the lower courts and the parties to settle the dispute.

Zubik v. Burwell, was one of this session’s most highly anticipated cases. Seven different religiously affiliated organizations, including one from Texas, challenged the Affordable Care Act’s provision that requires them to provide health insurance coverage for their employees’ contraceptives. The government created a solution that allowed the organizations to notify the insurer or the government, which would then pay for the contraceptive coverage at no cost to the organizations.

The opinion announced per curiam by Chief Justice John G. Roberts, Jr. failed to resolve any of the case’s issues. Since the parties are unlikely to reach an agreement, the 13 related cases will languish in appeals courts until the vacant seat in Washington is filled.

And in another display of how dysfunctional and polarized the Court has become, the justices had already asked these parties in this dispute over the Affordable Health Care Act’s birth-control mandate to compromise their positions, knowing it wasn’t able to craft a majority opinion.

These highly unusual moves highlight the need to fill the empty seat or have the justices achieve consensus opinions, the stated goal of the chief justice.

Similarly, the Court was set to decide important issues involving public sector unions in Friedrichs v. California on March 29th but meekly dismissed the appeal in another nonbinding 4-4 decision.

And other important decisions this session involving immigration, environmental regulation, and equal protection may also result in ideologically split decisions. The last case, Fisher v. University of Texas at Austin, has especial local interest and has been litigated since 2008.

The justices are in hibernation. They can no longer rely the swing votes of Justice Anthony Kennedy or Chief Justice Roberts.

Knowing its 4-4 deadlock, the court’s next term may have the lightest case load in 70 years, with only 12 appeals on the docket to date. Compare this to the 150 cases that used to be the norm.

It’s Time For the Senate To Confirm A Ninth Justice

U.S. senators should quickly consider whether Judge Garland is the right person for the job, and if not, approve someone who is. The court needs to be fully staffed so it can get back to work.

But that won’t happen any time soon.

The hole created by the death of Justice Antonin Scalia on February 12th will presumably not be filled until after the new president and senators take office and hold hearings, which won’t happen until February 2017 — and probably long after that.

This one year gap will happen even though the president nominated a qualified moderate candidate, Judge Merrick B. Garland, praised by virtually every senator in a previous confirmation hearing.

The judicial system is broken.

Michael Ramsey notes in The Atlantic that “Garland is by all accounts a fine judge and the Senate’s failure to take formal action may be regrettable, but that is a decision the Constitution entrusts to the political process.”

Unfortunately our politicians and justices have let their narrow political agendas blind the effectiveness of our supposedly non partisan legal system.

Previous posts:

New Supreme Court Justice Nominated; Fight Is On In Senate

Justice Scalia’s Death And The Future Of The Supreme Court

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