Why Dysfunction Reigns in the Supreme Court Right Now
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.