The Supreme Court punted yesterday in the latest Affordable Care Act contraception mandate case, Zubik v. Burwell. As was evident during oral arguments in March, on this case the justices fell into a predictable 4-4 liberal-conservative divide. The breakdown was the same one that was on display in the last contraception mandate case, Hobby Lobby v. Burwell, where the five conservative justices sided with the religious liberty claimants and against the government. The difference now, of course, is that Justice Scalia is no longer on the Court, so the 5-4 conservative victory has become a 4-4 tie. In the case of an evenly divided court, the lower court decisions stand, a less-than-ideal scenario in Zubik, since the lower courts were divided on the issue (most federal appeals courts side with the federal government, but one sided with the plaintiffs).
So the justices came together and agreed to punt. They issued an unsigned “per curiam” opinion in which they asked the lower courts to attempt to find compromise solutions that will address the concerns aired by each side of the legal dispute. Following oral argument, the Court had requested supplemental briefing on whether there may a way to satisfy both sides. In the Zubik per curiam, the Court announced, “Both petitioners and the Government now confirm that such an option is feasible.” The Court justified its punt:
Although there may still be areas of disagreement between the parties on issues of implementation, the importance of those areas of potential concern is uncertain, as is the necessity of this Court’s involvement at this point to resolve them.
It also went to some length to emphasize that this was indeed a punt, and not some trick play for one side or the other:
The Court expresses no view on the merits of the cases. 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 White House immediately declared the opinion as demonstrating why the Senate needs to hold hearings on Judge Garland so the Court can return to full strength. President Obama, like the good sports fan he is, called the punt a punt and suggested he would have liked the outcome better if Judge Garland got his promotion: “I won’t speculate as to why they punted,” he said, “but my suspicion is if we have nine Supreme Court justices instead of eight we might have had a different outcome.”
Liberal commentary on the Court’s opinion has predictably echoed the President’s sentiment, although with a healthier dose of hyperbole. In The Week, Scott Lemieux complains that the Court is not doing its job. The unfilled vacancy “means that the nation’s top appellate court does not so much decide a case as beg litigants and lower courts to resolve the disputes so that they don’t have to.” The dispute has been consigned to an “ongoing legal purgatory.” The Supreme Court “is slowly coming undone,” warned Garrett Epps at The Atlantic. The Zubik opinion “is the latest evidence of its slide toward paralysis.” The Supreme Court is “crippled” lamented the editors of the New York Times:
The court’s job 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. Despite what Senate Republicans may say about the lack of harm in the delay in filling the vacancy, the court cannot do its job without a full bench.
At Slate, Dahlia Lithwick puts a more positive spin on what the Court did in Zubik. “This is the court punting in the most elegant way imaginable, by suggesting that it’s always best to leave the courts and the parties to work it out on their own. Both sides will claim victory.” The Editorial Board at the Washington Post concurred, characterizing the Court’s action as exactly the kind of judicial restraint Chief Justice Roberts advocated at his confirmation hearing. “[T]he court dropped a big hint that this matter might be best dealt with through a less polarized, and polarizing, process,” the Post concluded. “We hope the parties take advantage.” Adam Liptak at the New York Times wrote an article that echoed the themes of the Post’s editorial. “The Supreme Court has gone into hibernation”; it is a “diminished” institution. But this is not necessarily a bad thing. He notes that Justice Kagan has credited the Chief Justice for leading the Court in a more consensus-oriented direction. And he quotes law professor Eric Segall suggesting that the Court’s minimalist approach “may lead to a better solution for both sides.”
(See also—The New York Times has a lively online debate between Epps, Segall, and UPenn Law Professor Kermit Roosevelt on the question, “Is a Deadlocked Supreme Court Such a Bad Thing?”)