The Supreme Court Is Not Doing Its Job

[Agschmid]

Don’t let the elegant posturing of the eight justices fool you.



On the merits, Monday’s Supreme Court unsigned opinion in Zubik v. Burwell, a vitally important contraception mandate case, is being read by some as a win for the Little Sisters of the Poor because the court didn’t brush off their claims that notifying the government they are unable to cover contraception for employees, thereby enabling insurers to do so, burdens their religious freedom. Others are hailing it as a big win for the Obama administration, which will get most of what it wanted if the Little Sisters can live with the court’s proposed compromise, including “seamless” health coverage for women employees. Really, though, Zubik—which raised crucial questions about whether one person’s religious freedom can trump a worker’s entitlement to preventative healthcare—is mainly just an inkblot for the ages; a placeholder until a real court can be reconstituted to do its job. [div style="display:inline; background-color:#FFFF66;"]It’s also as close as the Supreme Court will come to sending out a mayday signal. In a tiny, nearly inaudible voice buried in the non-decision, the court is hissing, Heeelp meeee!

The undisputed fact behind the surprising per curiam order in Zubik—the lead case in a challenge to the Affordable Care Act’s mandate that religious nonprofits cover contraception for women workers—is that the court is struggling. Whether you believe that, by asking the parties and lower courts to work this thing out by themselves, the Supreme Court shamefully punted or exhibited admirable judicial modesty, it is indisputable that the eight justices sent the case back to the appellate courts for repairs because the Court can’t resolve it shorthanded. The high court only agrees to hear a tiny number of appeals each term, and the same court that ruled on Hobby Lobby in 2014 would not have granted a hearing in Zubik if the ultimate purpose had been to release a confusing, unsigned order importuning the courts below to make this conflict please go away. As President Obama noted in an interview Monday with BuzzFeed, “my suspicion is if we had nine Supreme Court justices instead of eight, we might have had a different outcome.”

[div style="display:inline; background-color:#FFFF66;"]The Supreme Court is not currently doing its job. It has accepted fewer cases for next term than it’s granted in 70 years because it can’t resolve them. A massive public unions financing case resulted in a tie in March. A death penalty appeal deadlocked on Thursday. The fate of affirmative action may well be decided by just seven justices because Justice Elena Kagan is recused. The court generally prefers not to overturn decades of constitutional doctrine with only seven players on the field. The mess that will be the Texas abortion challenge, and also the Texas immigration challenge, may end in tied votes.

You can characterize the current court, with its set of equally terrible choices—between deadlocking 4–4 on some major cases and deciding not to decide others until a sunnier, fully staffed future day—as dysfunctional, or broken, or crippled, or as losing its collective will to live. Or you can see this as a refreshing act of judicial avoidance and restraint, and a way to take advantage of this moment to reign in a too-powerful institution. Or you may see it as a signal that partisanship will now infect the court forever. But whether you find yourself grateful that the eight-member court is hobbled or worried about it, hobbled the current court is.


Read more on Slate.

[Quackers]

1. I think the last sentence nailed it. Partisanship is here to stay until the system fails. Nt

[Massacure]

2. I think the author of this article is somewhat exaggerating the impact

Most cases (about half) taken by the Supreme Court end up in a 9-0 vote. About 20% of cases end up 5-4. The court is certainly hobbled, but I would hardly call it dysfunctional, broken, or crippled.