Tuesday, June 14, 2016

Extraordinary Supreme Court Ruling Settles Obamacare Contraceptive Mandate Case

The Supreme Court’s Role is to Decide Cases and Controversies, Not Push Settlement to Avoid Tie Votes 

Using a highly unusual and unorthodox approach, the Supreme Court recently resolved a series of related cases by essentially telling the parties to settle a dispute about whether the Affordable Care Act’s (ACA) contraceptive mandate violates the freedom of religion of faith-based groups. The Court's handling of the case demonstrates why the Court should stick to its traditional approach of deciding cases and not focus on how the results will be perceived.

Zubik v. Burwell involved several appellate court rulings that, with one exception, had ruled against the religious freedom challenges. This was the second case involving the mandate to reach the Supreme Court. In the first case, the Supreme Court held two years ago in Burwell v. Hobby Lobby Stores that the mandate, as applied to private corporations, violated the Religious Freedom Restoration Act of 1993, a federal law designed to protect religious freedom. 

In Zubik, nonprofit organizations opposed to the mandate claimed that the opt-out process substantially burdened their exercise of religious freedom. Until Justice Scalia passed away in February, most observers expected that the same majority of five justices from Hobby Lobby would rule against the mandate in the current case. But after oral argument, when it appeared that the Court was split 4-4, the Supreme Court issued a highly unusual order on March 29 instructing the parties to advise it if this matter could be resolved without the Court having to decide the case. Here is what the Court said:
The parties are directed to file supplemental briefs that address whether and how contraceptive coverage may be obtained . . . in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees. . . . For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. . . . The parties may address other proposals along similar lines, avoiding repetition of discussion in prior briefing. . . .
A 4-4 vote would mean that there would continue to be different results for people depending on where they live due to the conflicting lower court rulings, because when a tie occurs the lower court judgment is simply affirmed. While this does not necessarily promote the uniformity and clarity that the Court might prefer, it is the rule that the Court applies when it is evenly split. 

To say the Court’s March 29 order was highly unusual is a vast understatement, and at this point it was a foregone conclusion that the Justices would dispose of the case without ruling on the merits. I thought that perhaps they would do so by declaring that the case was moot, as they do in some cases in which the controversy is no longer ongoing, or that further development of the record was needed in the lower courts, or even by having the case reargued. 

Having decided, however, that a 4-4 tie was not desirable since at least one appellate ruling against the contraceptive mandate would survive, the Court ignored these prudential options, which would have had a similar effect. Instead, in an unsigned opinion for the entire Court, the Justices essentially told the parties to settle the dispute and directed all of the lower appellate courts to “allow the parties sufficient time to resolve any outstanding issues between them.” The Court’s words make it clear that it wants the matter settled:
In light of the positions asserted by the parties in their supplemental briefs, the Court vacates the judgments below. . . . Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans “receive full and equal health coverage, including contraceptive coverage." . . . The Court finds the foregoing approach more suitable than addressing the significantly clarified views of the parties in the first instance.
The last sentence is jarring -- the Court is saying settlement is better than deciding the case. While this may seem like a reasonable way to resolve the matter, that is not what the Supreme Court does. The parties are always free to settle; but that is not the Supreme Court’s role. Its job is to decide cases and controversies. In fact, I cannot recall the Court taking this approach in other cases, and the Court has had other tie votes in the past. Indeed, the Court announced it was split 4-4 in a hotly contested and closely watched case about union fees on the very same day -- March 29 -- that it ordered the parties to advise the Court how Zubik could be settled. That meant the lower court ruling in the union fees case was affirmed.

I find this settlement approach especially disturbing because Chief Justice Roberts expressed intense disdain for such judicial machinations at his confirmation hearing. At that time he made a point of stating that he viewed judging as umpiring, and not worrying about results.
Judges and Justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire. . . .  I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it's my job to call balls and strikes, and not to pitch or bat.
Somewhere along the way his view changed, and his concerns about public perception of the Court and the ACA have produced some strange results. Having rescued the ACA the first time around by stating that the individual mandate was constitutional as a tax, and then in a subsequent case upholding federal exchanges under the ACA by telling us that state means state or federal, it probably should come as no surprise that the Chief Justice did not want a 4-4 split leaving the ACA unsettled with respect to the contraceptive mandate. But if a tie is how the game ends, then the Chief Justice has told us that is what happens and we should accept it. Except, I guess, when it comes to the ACA, for which he surely has demonstrated an intense desire, and gone to great lengths, to see the law survive.

It has been said that hard cases make bad law. Perhaps in the case of the ACA, for this Chief Justice, it is that a bad law makes for hard cases.

13 comments:

  1. It struck me that this opinion was something of an abdication. I was curious whether it had happened in the past, but I never found the time to research it. There must be some very *interesting* conversations going on within the Court these days...

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