The Supreme Court Is Itching for a Tie-Breaker

The court’s recent rulings reveal a judicial body slowly staving off deadlock.
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The United States Supreme Court is getting awfully good at punting.

In a unanimous, unsigned opinion on Monday, the judicial body declared that it would not rule on a highly polarizing contraception case, remanding the case to lower courts to “explore whether a compromise was possible,” according to the New York Times.

The case, Zubik v. Burwell, followed 2014’s controversial Hobby Lobby case as a challenge by religious groups to the requirement that insurance companies cover contraception for female employees under President Barack Obama’s signature Affordable Care Act. The plaintiffs in Zubik v. Burwell had argued that the requirement violates the religious freedom affirmed under the Religious Freedom Restoration Act of 1993, the tenets of which have triggered conflict this election cycle over issues ranging from abortion to contraception to, more recently, transgender rights.

The ruling, as Slate’s Dahlia Litwick puts it, “took religious liberty off [the Court’s] docket, and also out of the center of the 2016 presidential election.” But the court’s decision isn’t just an arcane tactic designed to punt on the issue until next year. It’s a reminder that a deadlocked Supreme Court isn’t just unsustainable—it’s a threat to democracy.

Zubik has been unusual since it was first argued in March, barely a week after the U.S. got its first look at what a deadlocked 4–4 Supreme Court looks like following the death of Justice Antonin Scalia in February. After hearing oral arguments in the case, the Court issued another unusual unsigned order, asking the associated parties to submit briefs addressing “whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.” Essentially, the Court was asking them to negotiate a regulatory compromise out of the desire to avoid a deadlocked decision that would kick the issue back down to a lower court, which is exactly what happened on Monday.

The back-and-forth with lower courts isn’t itself rare. “The Supreme Court will often send cases back to a lower court without rendering a detailed opinion if questions or facts emerge during oral arguments before the Court that the lower body simply didn’t consider,” explains Harvard Law School professor Richard Fallon.

But what is rare in Zubik, Fallon says, is that the Supreme Court appeared to ask the parties involved in Zubik to provide an additional briefing that would generate questions about the efficacy of a compromise, essentially creating an excuse for the Supremes to punt to a lower court so that they might consider all the options rather than rule and set a precedent based on imperfect information. “The parties submitted their responses, and now it’s on the basis of this new potential compromise position that the Court has gone itself to try to generate,” Fallon says. The Supreme Court seemingly created its own loophole.

This desire to avoid a precedent-setting split decision is reflected in the Court’s unanimous majority opinion (per curiam decisions make up about 18 percent of Supreme Court rulings), along with concurrences from Justices Sonia Sotomayor and Ruth Bader Ginsburg, which stressed that the Supreme Court “was emphasizing nothing” in its Monday ruling, as Adam Liptak at the New York Times put it.

“The Court expresses no view on the merits of the cases,” the ruling states. “In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.”

The court’s meticulous ruling, designed to avoid establishing a precedent in any way, shape, or form, was trumpeted as a victory for contraception advocates. It should, however, be seen as something more subtle: a deliberate effort, motivated by institutional responsibility, to keep the Court from falling into the same pattern of deadlock that’s enveloped Congress in recent years.

“There’s every reason to expect that if the Court had simply decided the issue, they would have been divided four to four, and they don’t want to do that if they can help it,” Fallon speculates. “They are taking this alternative and unusual route to try to avoid simply dividing 4–4 and leaving the courts of appeals and the law in the state of uncertainty.”

The Court’s been struggling with the uncertainty issue since March’s Hawkins v. Community Bank of Raymore, which, while not as politically polarizing as Zubik, first began to articulate how the Court’s split could reverberate beyond the American legal system. The case, which dealt with a bank’s requirement to guarantee its business loans and, in turn, its liability for damaged credit, resolved in favor of the Eighth Circuit Court, though only within that court’s narrow jurisdiction.

Yes, it seems overly boring, but that’s exactly the problem, as The Atlantic’s Matt Ford writes: “As arcane as this might seem, it’s the kind of disagreement in federal law the Supreme Court exists to resolve. And thanks to a single indefinite vacancy, it can’t.”

While the Court took a 4–4 deadlock on the chin in Hawkins, Fallon notes that it generally tends to avoid these decisions, even with unusual compromises. Even without a case actually resolving in a split decision, the specter of deadlock is visibly changing the dynamics of the Court in such a way that’s resulting in increasingly unusual rulings. Consider one of Monday’s other rulings, in Spokeo Inc. v. Robins, which saw the Court again pivoting on a case involving class action lawsuits despite the fact that legal experts had anticipated a clear victory for Spokeo.

“Pretty much everybody agreed that Spokeo was fated to win this case, scoring another blow against class actions and consumer privacy. Then Justice Antonin Scalia died and all bets were off,”Slate’s Mark Joseph Stern wrote in response to the sudden change in the Court’s make-up. “With the court’s four liberals holding firm, it was apparent that the justices were scrambling to avoid a 4–4 tie. On Monday, they revealed their solution: A big old punt that essentially freed the court from having to reach a final decision. In a brief opinion, six justices concluded that the lower court did not sufficiently analyze the standing question.”

See the trend? Unable to fulfill its role as the country’s highest court due to the threat of a tie, we’re now getting a dysfunctional Court that’s abdicating its duty to decide constitutional controversies by both deadlock and choice.

Why go through all this trouble? Why does the Supreme Court hate 4–4 rulings? It comes down to a matter of institutional responsibility, Fallon explains—it’s a way to keep the Court functioning as an institution of the federal government despite the political obstinacy that’s left Scalia’s seat unfilled.

“Once cases are granted, the justice themselves feel to be members of a Court with institutional responsibilities,” Fallon says. “It’s not every person for himself, as if each justice is an individual umpire calling balls or strikes and tallying up the total to produce a ball-or-strike ruling. They have an institutional responsibility to decide cases, and in order to get majority decisions in cases, they decide cases in ways they wouldn’t normally on their own to preserve the balance of the court.”

The unusual outcomes of Zubik and Spokeo on Monday are both probably consequences of an equally divided Court, according to Fallon. “Many people expected a 5–4 decision that Robins had no standing, with Scalia part of the five,” he says. “The decision as it comes down is 6–2, which means that two justices who thought Robins had standing joined four who didn’t as a matter of compromise to avoid deadlock and create an opinion that neither upheld or denied standing.”

It’s actually not in any way a disastrous thing for the Supreme Court to split 4–4 — the first iteration of the Court had six justices. But one of the principal responsibilities of the Court outside of ensuring the primacy of federal law over states is to maintain uniformity, something it can’t do when a deadlock forces issues back down to a lower court with a specific jurisdiction, as was the case in Hawkins.

“There’s one sense where perfect uniformity can never be achieved, but too many cases the Supreme Court agrees to hear are often the most important ones,” Fallon says. “Far worse things have happened in the course of American constitutional history, but it’s unfortunate we have to wait six months to a year to get uniformity to respect to these issues.”

There’s a simple solution to this problem: Appoint a justice to fill Scalia’s place on the Court. While Republicans have vowed to put a hold on any nomination for Scalia’s seat by Obama — including Merrick Garland, a jurist Fallon describes as “the model of mature judgment rather than a 35-year-old ideologue” — the remaining justices are slowly and subtly fighting to keep the institution functioning in the face of judicial uncertainty.

That the Court has managed to duck and weave in the face of deadlock so far is unsurprising; after the death of Scalia, Justice Elena Kagan praised the ability of Chief Justice John Roberts to forge compromise on an often-split bench as a “consensus builder.” But just as the justices have a responsibility to keep the Court afloat, so does Congress — and Congress shouldn’t punt on its responsibility any longer.

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