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The Supreme Court Is Being Forced To Waste A Year

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The Supreme Court Is Being Forced To Waste A Year

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

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.


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 



  1. Dominick Vila May 22, 2016

    Will a Democrat-controlled Senate respond in kind and make this a precedent to be followed for all future Presidents, regardless of party affiliation? Judging by what our lame elected officials have done in the past, I doubt it.

    1. TZToronto May 22, 2016

      You may be right, but it’s more likely that a Democratic Senate will hold the appropriate hearings and then refuse to consent to evenly remotely questionable nominees. On the other hand, they might consent to a true centrist whose decisions are based firmly on Constitutional concepts rather than personal preferences. Republicans, on the other hand, can be relied on to vote against any nominee who is not approved by the Tea Party. The only way to ensure responsible Supreme Court justices is to have a Democratic Senate; Republicans cannot be trusted.

  2. Phil Christensen May 22, 2016

    Just depends on who’s ox is getting gored at the moment.

  3. charleo1 May 22, 2016

    Discredit, and drag the office of President thru the dirt… Done. Render the Congress dysfunctional via payola/partisanship, Done. Clog the dockets by refusing to consider any judicial replacements to the Federal Bench, including the High Court more than two years prior to any election, unless both the executive, and legislative branch have super majorities so as to prevent any need for any compromise…Done. Make every disputed issue, or any budget related legislation a ready excuse to shut down the government, until such time as demands as yet to be determined, are fully, and irrevocably met. Done, done, and repeated, until all public faith in the institutions of gov. the courts, and every tenet, principle, and ideal this Nation was founded upon is destroyed… Nearly done.

    1. latebloomingrandma May 22, 2016

      Enter–“-Patriot” militia and paramilitary groups who hate the gov’t. Done.

      1. charleo1 May 23, 2016

        The thing about these paramilitary groups, and their comrades in arms, the propaganda spewing elitists, like Charles, and David Koch, Grover Norquist, the mouthpiece for the powerful lobby group, ALAC and others. Is they not only hate the gov. they hate the ideals, and concepts of freedom, and equal play, so enshrined in the Constitution that that government upholds, in a country they falsely claim to love. And would no doubt rule with a tyrannous bloody hand, if they ever were to achieve their goals of power. Ironically, for me, the fact that these obvious seditionists can openly ply their trade, and call for the demise of the U.S. Government, and not be jailed, or hung, is for me, the reason I so respect our system. The faith our form of government, in order to be successful, to survive such disloyalty, requires in it’s people. It’s a thing we don’t always think about, this democracy of ours. How truly courageous, and revolutionary the idea was, that a government would trust it’s very existence to the population at large. Instead of like all governments before, relying on it’s ability to enforce, and perpetuate it’s power at the point of a gun. A government, that as Lincoln described it in the midst of it’s greatest challenge, as a testing, of “..whether this Nation, or any Nation so conceived, and so dedicated, can long endure.” Well, we did endure. And that, we as Americans can take great pride, and satisfaction in the fact, “they,’ didn’t win.
        And if we remember for a moment, just how special, and incredibly lucky we are to be living in such a Country as we are, neither will these guys. At least that’s what the Founders were betting everything they possessed on.

        1. latebloomingrandma May 23, 2016

          Well said.

  4. Andrew Long May 22, 2016

    8 more paychecks for one year that Congress needs to return to the American people.
    Add that to the ones for Congress and the Senate and all of our money they spent on Benghazi and email investigations. Any math whiz out there care to add it up and give us a total?

    1. Independent1 May 22, 2016

      If you count the wasted resources spent by the GOP on passing worthless legislation in Congress it knew would not pass Obama’s vetoes & wasted congressional committee monies, the waste is over 500 million. And that doesn’t include the billions they’ve wasted shutting down the government.

      1. mary beardslee May 22, 2016

        Co. is paying for most of the single payer health insurance from pot rewards. We could afford if we quit spending the majority of tax dollars for wars and the military complex.

        1. Independent1 May 22, 2016

          Unfortunately, a significant number of Americans (64% of Americans) do not want to cut the military budget . And Bernie is grossly underestimating what it would cost to provide single-payer to all Americans (the latest projection is a deficit of 16 trillion over 10 years).

          But see this on the number of Americans who want to keep military spending as it is our higher:

          From an article on Bernie’s radical past:

          Once he was in Congress, Sanders called for deep cuts in military spending. “Mr. Chairman, it is my view that the United States can maintain its position as the strongest military presence on Earth, and still cut our military spending by 50 percent over five years,” he said on the House floor in 1991. Cutting the defense budget in half, unlike eliminating it, may be an entirely sensible position. It is, however, an extremely unpopular one. According to Gallup, 64 percent of Americans want either to maintain or increase current military spending; only 32 percent want to reduce it. Americans have more confidence in the military than in any other institution, including organized religion.


  5. CrankyToo May 22, 2016

    The rat bastard Republicans in Congress have finally managed to export their brand of “progress” to the judicial branch. It’s called gridlock, of course.

    They’re a bunch of scurrilous dirtbags, and anyone who casts any vote for any Republican running for any office anywhere on their ballot is guilty by association.

    1. Dawnmaustin May 23, 2016

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  6. Lynda Groom May 22, 2016

    Our wonderful Republican Congress loves dysfunctional government, so why should the Court be any different?

  7. Insinnergy May 22, 2016

    And it’s worse than just the hypocrisy of ignoring the Constitution in holding hearings for a replacement for strict Constitutionalist, Scalia.

    The current GOP line is: Obama is a Lame Duck (hint: no he’s not)! Obama isn’t allowed to decide. The People Must be Allowed to Decide!
    (This also implies, of course, that Obama is somehow no longer allowed to make decisions based on his elected-by-the-people authority, because he’s got most of a year left as President?… which is idiocy only a Republican would believe to begin with.)

    So the NEXT president should be allowed to pick the Supreme Court Nominee… because the People Must Decide…

    Except that several key Republicans have already said that if they lose the Election, they will confirm Obama’s nominee between the Election and the next President taking office… because otherwise they might end up with a far more Liberal Supreme Court Candidate…

    So explain that, Republicans.
    How is it so desperately important to go against the Constitution and every confirmation hearing since the Founders so “The People Can Decide” through the next President…. if you openly admit that you’ll do the opposite if it suits you?
    How sad and lacking in principles do you guys look right now?

    Essentially you’re bald-faced lying to the American people. You don’t want them to decide. YOU want to decide.

    It’s ironic Scalia would be the first person to denounce this gridlock idiocy. He must be turning in his grave so fast now you could use him to power Manhattan island.

    Can you imagine the sh1tstorm that will ensue next time a Republican President is in their last year, and the Democractic Senate refuses to even hold a hearing for their candidate?… OMG… The screaming, the frothing, the histrionics!

    Of course these pinheads have already worked out that the chances of this happening while they themselves have to pay for it politically, is very small… so why not screw the pooch for political advantage.


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