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Wednesday, August 16, 2017

Last Monday, the United States Supreme Court provided no ruling on whether employers should be required by law to provide women with access to contraceptives at no-cost. The court’s decision not to decide is the first major installment in what looks to be an ongoing plague of uncertainty in the judicial branch.

The case was Zubrik v. Burwell, brought by 29 religious nonprofits that object to offering female employees insurance coverage for certain contraceptives they equate to abortion, as would be normally required by law under the Affordable Care Act. Instead of ruling, SCOTUS sent the case back down to the lower courts.

This suit has been heard many times already by a number of courts, all but one of which established that religious organizations were exempt from the law. Based on the prior decisions, returning the case to the lower courts can be seen as a de facto win for the religious groups, but both sides dressed the non-answer up in press release speak. Either way, litigation will continue.

In an interview with the New York Times, attorney David Cortman of the Christian nonprofit organization Alliance Defending Freedom — which represents some of the challengers — said, “The Supreme Court was right to protect the Christian colleges and other groups from having to pay fines or fill out forms authorizing the objectionable coverage. The government has many other ways to ensure women are able to obtain these drugs without forcing people of faith to participate in acts that violate their deepest convictions.”

Gretchen Borchelt, vice president for reproductive rights at the National Women’s Law Center, told the L.A. Times she saw the outcome as good for women, saying “[t]he government can now move forward to assure women have seamless access to the contraceptive coverage. We’re not happy there will still be more litigation, but this should pave the way for women to get full coverage.”

In any case, the White House is pleased. Press secretary Josh Earnest told reporters the decision will “allow millions of women across the country to continue to get the health coverage that they need,” while upholding religious liberty. President Obama, in an interview with Buzzfeed News, said he wasn’t sure why SCOTUS “punted” this case, but he suspects the court would have reached a different outcome had nine justices been present.

Indeed.

Since the death of Justice Antonin Scalia in February SCOTUS has balanced on a too-even keel, with four sitting conservatives and four liberals, and has deadlocked twice. The court’s punting likely stemmed from justices’ desire to avoid another 4-4 deadlock, which is an unfavorable outcome that leaves the law undefined and resolves nothing. Without a ninth member the court cannot effectively form the decisive majority that is needed to establish law. And because Senate Republicans have vowed to disallow Obama’s nomination of Merrick Garland — citing the bogus precedent that it has been 80 years since a Commander in Chief picked a justice during a presidential election year — SCOTUS may end up stuck in this stagnant, gridlocked limbo until 2017.

Speaking to the New York Times about the recent 4-4 ruling on whether workers should be required to join labor unions, Lee Epstein, a law professor and political scientist at Washington University in St. Louis, said, “On eight-person courts the justices reach far fewer 4-4 decisions than we would expect. They seem to work hard to minimize them because they’re so inefficient. They can hold over cases, cast strategic votes to avoid a decision down the road that may be even worse ideologically, write narrowly and dump cases on procedural grounds.”

In other words, working with an 8-member court is a total waste of time. And it’s a waste of energy and money, with potentially dire consequences.

In an interview with ABC News, Georgetown University Law Professor Susan Bloch speculated the justicies will be “less likely to take cases going forward” if they anticipate a deadlock. When decisions are sent back down to the lower courts, Bloch said, “all the time the justices have spent considering and debating the case is for naught.”

“[Those cases] have many hours of lawyer time and lawyer time is expensive,” Bloch noted, giving the approximation of “multiple thousands of dollars in billable hours.”

The bench vacancy is also creating a shift of influence from SCOTUS to the lower courts, as the justices can reach total agreement on some aspects of a case and pass other parts back down to the circuit court. This was evidenced by the recent 8-0 ruling in Harris v. Arizona Independent Redistricting Commission, a contentious case concerning partisan gerrymandering that went undetermined. Dan Abrams, chief legal analyst for ABC News, said this meant SCOTUS “agreed on certain issues but didn’t address the most controversial issue on how districts can be drawn.”    

“Suddenly,” Abrams said, “in some of the most divisive cases, the circuit courts have much more power.” This can be problematic because of the varrying ways states can apply and interpret the Constitution.

Each term, the U.S. Supreme Court typically hears about 70 cases; many are boring, but they all carry immense influence, and some are capable of radically transforming peoples’  lives across the country. For instance, in April, SCOTUS heard United States v. Texas — a 26-state-challenge to President Obama’s plan to cancel the deportation of some 4 million undocumented immigrants. With an explosive case like that on the docket, the action taken by Senate Republicans to force SCOTUS to operate one person short is blatantly foolish.

Mitch McConnell & Co. are abusing their power to bully the system into a year-long pause, apparently hoping for a President Donald Trump, whom they would trust more than the incumbent to pick a suitable replacement for Antonin Scalia. It’s sabotage, plain and simple. There is an established system designed to maintain a nine-member bench: justices are elected for life, and when a judge retires or dies, the president nominates a successor, whom the Senate then votes to approve or reject. Obama made his choice. It’s time for the Senate to do its job so the justices can do theirs.


Photo: People line up to visit the U.S. Supreme Court in Washington March 29, 2016.   REUTERS/Gary Cameron 

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