What Does 'Zubik' Tell Us About the Supreme Court?

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By Casey C. Sullivan, Esq. on May 17, 2016 12:59 PM

Yesterday, the Supreme Court issued an opinion, or rather, a non-opinion, in one of the term's most important cases, Zubik v. Burwell, a challenge to Obamacare's contraception mandate procedures. In a brief, per curiam opinion, the Court remanded seven cases it had chosen to decide just months before -- without deciding any of the constitutional issues at hand. Accompanying orders tossed six more cases back to the appellate courts, where the judges will now have to grapple with the issues the Justices avoided, with little instruction other than to play nice and seek out compromise.

Is this the sign of a Court in disarray, crippled by a divided eight-Justice court? Or a pragmatic attempt to reach a compromise where compromise seems possible? Or none of the above?

Reading the Zubik Tealeaves: Broken Court Edition

So far, the most common reading of Zubik is that the Court was incapable of reaching a majority. Split four-to-four, the Justices decided it would be better to punt the issue back down to the lower courts, either giving the parties time to find a compromise or giving the justices a bit of breathing room before the issue returns in the future, likely to a fully-staffed Court.

The result is the further politicization of what was already a highly politicized case.

Many have already used the remand as a political cudgel, demanding that Senate Republicans take action on Judge Merrick Garland's nomination to the Supreme Court. The New York Times editorial board, for example, used Zubik to argue that "the court cannot do its job without a full bench," declaring that the Supreme Court's work is "not to propose complicated compromises for individual litigants; it is to provide the final word in interpreting the Constitution and the nation's laws."

No Reason for Conservatives to Relent

Zubik could also be used to inspire conservative resistance to Garland.

The non-decision isn't just about a crippled Court, it's a testament to the continued impact of Scalia's death and the importance of his replacement.

If the Court truly did split (there's no way to know for sure), that means Justice Kennedy was likely willing to find that the Obama administration's contraception opt-out procedures substantially burdened religious employers' religious practice -- despite having endorsed an almost identical system in his Hobby Lobby concurrence.

With a conservative justice like Scalia, the administration would have lost, empowering religious conservatives and striking a blow against Obamacare. With a more liberal-leaning replacement, the president's signature accomplishment would have survived another challenge. That doesn't give Senate Republicans much incentive to end their intransigence.

What if the Non-Decision Was the Desired Outcome?

Of course, there's always the chance that the Court did not split, that the non-decision was not just a compromise, but the Court's best possible outcome. After all, when the Court requested additional briefing, it suggested that compromise between the parties was possible.

The Court asked the government and employers to consider whether a new system would be possible, one requiring no involvement from petitioners other than their decision to provide health insurance sans contraception coverage. And that request came less than a week after oral arguments, indicating that a compromise solution was considered early-on, not as a last ditch attempt to get around a four-four split.

But that's not the theory you'll hear bandied about in the upcoming days. Perhaps because it's not as likely. Or perhaps because it doesn't fit the political narrative as well.

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