This is what a broken Supreme Court looks like.
Three weeks before the official end of the 2015-16 term, there are 22 cases still outstanding. On Monday, with several high profile cases eagerly anticipated by court-watchers, the Court only announced two relatively minor opinions. It looks likely that the Court will need to extend its own deadline.
And then, on the same day, the bizarre news that, Oops, one of the two issues the Court said it would hear in a death penalty case next fall – it won’t actually hear. Never mind!
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That kind of sloppiness is rare. On the merits, it’s not that important, but procedurally, it’s a highly unusual screw-up.
It’s impossible not to see these events in the context of a short-handed Court, now four months without its full complement of judges, doing its best to stay on top of things. And not always succeeding. All of this, of course, is due to the completely unprecedented stonewalling by Senate Republicans of a perfectly qualified candidate to fill that vacancy.
In recent weeks, there have also been more subtle, but more destructive, consequences of the Senate’s oath-breaking, Constitution-scorning inaction.
Last week, the liberal advocacy organization People for the American Way published a report analyzing the effects of two tie decisions that have come down since February. In one, the Court left in place a split between the Sixth and the Eighth Circuits regarding spousal guarantees for bank loans. Despite all the resources invested in resolving this legal issue, federal law now remains uneven; requiring such guarantees is legal in some circuits, illegal in others. To be sure, bank loan guarantees is not a high-profile issue, but it is one that affects thousands of people every year.
More politically charged was the Frierichs case, which the Court left unresolved on March 29. That case was about whether public-sector unions could require non-union employees to pay a “fair share fee” to pay for collective bargaining and other costs. Without such fees, progressives argue, the unions might go out of business, ultimately hurting employees. With them, conservatives complain, they compel public employees to effectively join a union and support its political activities; that violates the First Amendment.
Who’s right? The Court was deadlocked, so we don’t know the answer.
Then there are the cases like Zubik v. Burwell, in which the Court, rather than decide a contentious issue about religious exemptions and Obamacare, proposed and ordered its own makeshift compromise, resolving the particular dispute but leaving key questions unresolved about religious exemptions, which is driving controversies in North Carolina, Texas, Tennessee, Indiana, and around the country.
It’s also quite possible the Court will either deadlock or punt on some of the major cases remaining this term, including Whole Women’s Health, a case about Texas’s abortion restrictions. Assuming Justice Kennedy votes to uphold the regulations, that will place the Court in a 4-4 split, and leave the Fifth Circuit’s decision – which mostly upheld the restrictive rules – in place.
But here’s where it gets even more complicated. Last June, the Supreme Court placed an injunction on enforcement of the law, pending the outcome of the case. So what happens if the Court deadlocks? Is that an “outcome,” or no outcome at all?
Functionally speaking, allowing the Fifth Circuit opinion to stand means the Texas law is Constitutional. And that, according to experts, would require the majority of abortion clinics in Texas to close. A 4-4 decision may sound like a tie, but there’s no tie when it comes to those clinics, and the women who use them. They’re either open or they’re closed – and it’s not at all clear why one side should prevail in a tie.
Worst of all, this supreme dysfunction may become the new normal. As Laurence Tribe and Joshua Matz wrote recently in the Washington Post, it’s quite plausible that confirmation stonewalling will become commonplace anytime there is divided government in Washington. It’s not as if the Democrats are just going to forgive and forget – they’ll fight fire with fire. (This, incidentally, is one of many reasons Fred Barnes’s ludicrous celebration of the anti-Garland stonewall was so myopic.)
And it’s not even just the Supreme Court; as we reported earlier, the Republican-created “judicial emergency” extends to lower courts as well, with a record number of vacancies going unfilled. Mainstream GOP leaders may be criticizing Donald Trump for attacking a Mexican-American judge, but they are attacking the entire judicial system.
So this is what a broken Supreme Court looks like: behind schedule, making careless mistakes, deadlocking, contorting itself to achieve consensus, and sometimes failing to fulfill its Cconstitutional responsibility to maintain the rule of law. Senate Republicans have acted like the Garland stonewall presents just a small inconvenience in the service of “letting the people decide.” But in fact, it is a full-on fiasco. Its only positive outcome would be the generation of enough rage to throw the bastards out.
Several years ago, a judge wrote that when, as in cases of recusal, “The Court proceeds with eight Justices,” it “rais[es] the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case” and “impairs the functioning of the Court.”
That judge was Justice Antonin Scalia.
