Why Dysfunction Reigns in the Supreme Court Right Now

With the Senate refusing to move on a nominee, many decisions are now split four-four — but at least we're dodging some bullets

Supreme Court Justices John Roberts, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor at this year's State of the Union address. Credit: Evan Vucci/Pool via Bloomberg/Getty

Are you in search of a new cause to get behind? Looking for some downtrodden folks whose lot in life you can lament? Well do I have the people for you: the surviving eight justices of the Supreme Court.

Their job is to decide legal cases. They're also supposed to try to announce a clear legal principle for the rest of the profession and country to use going forward. But, for the justices who remain on the Court after Antonin Scalia's death, that's proven difficult. The result is that we have a more or less dysfunctional Supreme Court at the moment.

What's a Court to do when it's evenly split on some of the most divisive legal and social issues of the day and no one seems willing to give an inch? Ideally, a ninth justice would join them to break the tie. But thanks to the Senate seeming to care more about literally anything in the world than filling the current Supreme Court vacancy, we'll be lucky if we see a ninth justice before the 2018 midterm elections. (After all, shouldn't those future voters also have a say in this important issue?)

In the meantime, the eight existing justices plod away, amid a terrible situation.

This week, that terrible situation was on full display. On Monday, the Supreme Court all but implored the Obama administration and religious objectors to contraception to hold hands and play nicer with each other. The legal issue was, once again, whether the Affordable Care Act can require employers with religious objections to provide contraception as part of their health care plans. After the infamous Hobby Lobby decision allowed for-profit corporations owned by religious individuals to opt out, non-profit religious organizations wanted the same.

The Obama administration offered an easy out: Just tell us you aren't going to provide the coverage, and we'll take care of it ourselves. But the non-profits objected to even that accommodation, saying that signing a government form makes them complicit in the evils of birth control. (As their lawyer argued to the Supreme Court, it would be the equivalent of forcing nuns to dispense contraception in their own living rooms.)

Shortly after oral arguments in late March, the Supreme Court floated a compromise to the parties and asked them to say whether the compromise would work. Both sides wrote new briefs to the Court, but apparently that didn't even help with the tie, because in an unsigned order Monday, the Court sent the issue back to the lower courts that had previously decided the issue. (All had agreed with the Obama administration except one.) The order asked the parties to try harder this time, and for the courts to give them the opportunity to do so.

In other words, the Supreme Court declared to the world that, in close cases such as these, it doesn't know how to do its job. So, instead, it wants the lower courts to do their jobs in the hopes that either A) a miracle will occur and the parties will suddenly play together peacefully, or B) a different miracle will occur and the Senate will give the Court a ninth justice so that when the cases come back up the chain, there will be a tie-breaking vote. "A" seems impossible to me, so even with the Senate so far failing to do its job, I'd put my money on "B" (eventually).

The other case decided Monday felt similar. It was a closely watched case about who can sue corporations for violating statutory rights. As with the contraception case, the Court punted, telling the lower court to consider the case again under a less-than-clear, though not really new, standard the Court tried to explain. There's no way the case would have come out this way with a ninth justice.

But that's the rub for those of us on the left of the political spectrum: The Court's dysfunction is in some ways our gain. If Justice Scalia were still alive and on the Court, it'd be hard to imagine the justices punting these cases, and so much easier to imagine them ruling against contraception access and in favor of corporations.

So go ahead and feel sorry for the justices and the Supreme Court right now. But some of us can also celebrate that with this dysfunction we're at least dodging some bullets … for now.