No one should be surprised that the U.S. Supreme Court deadlocked this week on a politically charged case involving public employee union dues.
On the same day, the high court took the unusual step of seeking additional legal briefs after listening to arguments in a case brought by religious charities opposed to an Affordable Care Act requirement that health insurance policies cover contraceptives. The justices obviously were fishing for a compromise between the parties to avoid another in what could become a string of high-profile stalemates.
As Harvard Law Professor Noah Feldman put it in his Bloomberg View column, “The Supreme Court is getting desperate.”
With good reason. The court has been reduced from nine members to eight since the Feb. 13 death of Antonin Scalia, and the remaining justices are evenly divided into two blocs whose members typically vote together on legal questions that divide liberals and conservatives in the political realm.
The justices have split 4-4 twice in the seven weeks since Scalia died. The deadlocks came on a lending discrimination case from Missouri and a challenge by six California schoolteachers opposed to mandatory union dues.
To many observers, the dues dispute, Friedrichs vs. California Teachers Association, was the biggest case on the court’s docket this year.
With the Senate’s Republican leadership refusing to consider the president’s nomination of Judge Merrick Garland to succeed Scalia, Friedrichs almost certainly won’t be the last case that results in a 4-4 vote.
Among the pending cases considered likely to produce non-decisions are challenges to President Barack Obama’s executive orders on immigration, a Texas law restricting access to abortion and admission policies at the University of Texas that take race into consideration. Another one involves the meaning of “one person, one vote” in the context of drawing state legislative districts.
A split decision on the Supreme Court leaves the lower court ruling in effect.
In the Friedrichs case, that means that a Supreme Court precedent stands. But on several pending issues, lower courts have issued conflicting rulings, leaving the country without a settled legal standard. No one benefits from that.
Senate GOP leader Mitch McConnell says Scalia’s seat on the court should be filled by the next president. That would leave the court shorthanded not just for the remainder of this term, which ends in June, but for most — if not all — of its next term, too.
The court reconvenes in October, but the new president won’t take office until Jan. 20. Among the 10 most recent Supreme Court appointments, the shortest period between a presidential nomination and Senate confirmation was 50 days. The longest was 99. So the best-case scenario appears to be confirmation in mid-March of next year — a little more than two months before the court adjourns its 2016-17 session.
McConnell says voters ought to have a say in choosing Scalia’s successor. The voters can judge only if the candidates identify their choices prior to the election. Hillary Clinton and Bernie Sanders have called for a confirmation vote on Garland. Donald Trump, Ted Cruz and John Kasich oppose a vote. They ought to tell voters who they would choose.
For now, be prepared for a lot of 4-4 votes. That isn’t what’s meant by balancing the scales of justice.