As you may know, last week the Supreme Court heard oral argument in Zubik v. Burwell, a case in which religious nonprofits claim that the opt-out procedure set up by the Obama administration (which involves filling out a form and sending it to their insurer), designed to avoid their having to supply contraceptives to their employees through their health insurance plan, is itself a burden on their religion. Most accounts of the oral arguments I have seen report that, as you might expect, the Court seems divided 4-4. If that doesn’t change, the result in the case will be a one-sentence order reading “the judgment is affirmed by an equally divided Court.” (That is what happened earlier this week in Friedrichs v. California Teachers Association, an important union/First Amendment case.) Such an order has no precedential effect, and would mean that the opt-out procedure stays in effect in most of the country, but not in several midwestern states.
In an attempt to avoid such an obviously unsatisfactory outcome, the Court yesterday issued an order the likes of which I have never seen before. Here it is, in full:
The parties are directed to file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but 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. Petitioners with insured plans are currently required to submit a form either to their insurer or to the Federal Government (naming petitioners’ insurance company), stating that petitioners object on religious grounds to providing contraceptive coverage. The parties are directed to address whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners. 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.
Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company – aware that petitioners are not providing certain contraceptive coverage on religious grounds – would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan. The parties may address other proposals along similar lines, avoiding repetition of discussion in prior briefing. The briefs, limited to a single brief 25 pages in length for petitioners, and a single brief 20 pages in length for respondents, are to be filed simultaneously with the Clerk and served upon counsel for the other parties on or before April 12, 2016. Reply briefs, limited to a single brief 10 pages in length for petitioners and for respondents, are to be filed simultaneously with the Clerk and served upon opposing counsel for the other parties on or before April 20, 2016.
It’s unusual enough for the Court to order supplementary briefing. It’s almost unheard of (I don’t recall it happening before) for the Court to, in effect, propose a way of settling the case via such an order, yet that does seem to be what it’s doing here. It’s worth noting that issuing an order like this would require at least 5 votes, so it seems that at least one Justice is open to switching sides if the question posed in the order can be resolved to his or her satisfaction.
I give the Court credit for trying to avoid a 4-4 result in Zubik. Because there is disagreement among the federal courts of appeals on the legality of the opt-out procedure, a 4-4 tie would mean that federal law applies differently in different parts of the country, and that is something that has been recognized as a very bad thing from the time the country was founded. In an important 1816 Supreme Court case (Martin v. Hunter’s Lessee), Justice Story reflected on “the importance, and even necessity, of uniformity of decisions throughout the whole United States upon all subjects within the purview of the Constitution,” and he lamented that the “public mischiefs that would attend” the absence of such nationwide uniformity “would be truly deplorable.” He was right then, and he’s right now.
What this development really shows, though, is that the Supreme Court really does need its full complement to function properly. I’m glad to see that a couple of Republican Senators are now openly defying Mitch McConnell’s ludicrous “no meetings, no votes” position on the nomination of Merrick Garland. Here’s hoping that a few more will find the guts to do so.