March 2016 was the Supreme Court’s first full month in session with only eight justices in more than 25 years -- and its first in almost 30 years without Antonin Scalia. The difference was clearly felt all month long. The cases that so sharply divided the Court in March on reproductive rights, religion and other issues, and the controversy outside the Court resulting from the Republican Senate’s refusal to even consider the President’s nominee to fill the vacancy, have underlined the importance of a fully staffed nine-member Supreme Court and the crucial significance of the November elections for the future of the Court and of Americans’ rights and liberties.
The lion’s roar towards the beginning of March was the oral argument in Whole Woman’s Health v. Hellerstedt, a challenge to an extremely restrictive Texas law that would reduce the number of clinics offering abortions in Texas to ten and seriously harm the health and reproductive rights of millions of women. The more progressive wing of the Court was extremely vocal and seemed to dominate the courtroom, perhaps because of the absence of Scalia’s aggressive questioning but also because of the genuine concern and even outrage at Texas’ back-door attempt to make abortion effectively inaccessible to most Texas women. Right-wing justices Roberts and Alito were just as clearly disposed towards Texas, while Justice Thomas, who had actually spoken during an argument in February, was silent.
As usual, the key justice on the divided Court was Kennedy. If he sides with the conservatives, the lower court decision upholding the Texas law will likely be affirmed by a 4-4 tie vote, setting no national precedent but harming women in Texas and inspiring such restrictive laws elsewhere. If he sides with moderate justices, the law will be struck down 5-3. Based on the argument, which is an imperfect predictor, the most likely scenario may be a 5-3 ruling keeping the temporary stay of the law in place and sending the case back to the lower courts for additional fact finding on the effects of the law. That could very well lead to the Supreme Court reconsidering the issue in a year or two--making the identity of the justice who replaces Scalia, and who fill any other Court vacancies that arise, critical to the future of reproductive rights.
Later in March, the Court graphically demonstrated the problems caused by having only 8 justices by splitting 4-4 on the issue of whether federal law protecting against discrimination in lending applies to discrimination on the basis of marital status against bank loan applicants. The split affirms the decision in Hawkins v. Community Bank of Raymore that the law does not so apply, but that decision controls only for residents of the Eighth Circuit Court of Appeals in Arkansas, Iowa, Minnesota, Missouri and Nebraska. A contrary decision by the 6th Circuit means that this protection does apply to residents in Michigan, Ohio, Kentucky, and Tennessee. No one knows what the rule is elsewhere. The Court also split 4-4 and thus affirmed without opinion in the case of Friedrichs v. California Teachers Association, a challenge to Supreme Court precedent on unionization that was rejected in the lower courts but will likely come up again in the future; indeed, the attorney challenging the unions has already announced he will ask for the case to be reheard next term. An unknown number of 4-4 splits and conflicting rules and confusion across the country is likely until the vacant Court seat is filled.
In fact, another such possibility came up at another contentious argument towards the end of March in Zubik v. Burwell. That case concerns religious objections under the Religious Freedom Restoration Act (RFRA) to the Affordable Care Act’s (ACA) requirement that all employer insurance plans provide employees with access to contraceptives. In the previous Hobby Lobby case, the Court ruled 5-4 that private for-profit employers could invoke RFRA and take advantage of an ACA accommodation that allows religious non-profit universities and other institutions to simply notify the government of their objections so that the government would deal directly with their health insurance companies to provide coverage and leave the employers out of it. Now, in what has been dubbed Hobby Lobby Part II, those very same non-profits are claiming that the very act of opting out imposes a “substantial burden” on their religious practices because they remain “complicit” in their employees getting contraceptives. In other words, they claim RFRA gives them the right to prevent their employees from receiving contraceptive coverage under the ACA, even if that violates the employees’ own religious beliefs.
Many supporters of religious liberty, and every court of appeals to have considered the issue but one, have rejected these arguments. Professor Douglas Laycock, widely acknowledged as one of the drafters of RFRA and who has never before supported the government’s position in a religious liberty case, did so in Zubik. As he explained, echoed by the comments of the Court’s four moderates, such an interpretation of RFRA conflicts with its language and history and would allow any religious adherent to exempt itself from any federal law by deciding for itself that its religion was “substantially burdened”, unless the government could prove a “compelling government interest.” As Justice Breyer pointed out, that view could allow Quakers to refuse to pay taxes, workers to refuse to shovel snow in front of an abortion clinic, or Christian Scientists to refuse to report accidents. In effect this would misinterpret RFRA to mean that there is a “substantial burden” whenever any government action offends someone’s religious beliefs. And millions of women could be deprived of ACA contraceptive coverage as a result.
Not surprisingly, Chief Justice Roberts and Justice Alito sided with the challengers, as Justice Thomas will likely do as well. But even though he praised the accommodation in Hobby Lobby, Justice Kennedy suggested that it did constitute a “substantial burden” under RFRA because the adherents said so. Although other Kennedy comments were more in line with arguments made by Laycock, and the Court has asked for additional briefing in the case, if Kennedy joins the three more conservative justices, the result again would be a 4-4 split. That would mean that whether a woman who works for a religious university can receive ACA contraceptive coverage will depend entirely on where she lives; if she is in Minnesota, Missouri, Arkansas, Iowa, or Nebraska in the Eighth Circuit, she is out of luck. And the issue will remain confusing and unresolved until another such case reaches a Supreme Court with nine justices.
All this happened in March in the context of the unprecedented Republican Senate blockade against providing a hearing or vote, and in many cases even a meeting, to the President’s well-qualified Supreme Court nominee, Chief Judge Merrick Garland of the DC Circuit, who has previously been praised even by Senate Republicans. Statements by many Republican Senators and right-wing interest groups make their intent clear: to keep the seat vacant in the hope that a Republican President is elected and will appoint someone like Scalia to preserve the current usual 5-4 far right majority on the Court.
The events in March, therefore, vindicate the judgment of Republican and Democratic former judges, law school deans, and many others that it is important that the Court be fully staffed by nine justices as soon as possible. In addition, given the age of several other Supreme Court justices, including moderates like Ginsburg and Breyer, it is extremely likely that even if Senate Republicans succumb and Garland is confirmed, there will be other vacancies after the next President takes office that could easily shift the balance of the Court. The far right knows the importance of this election for the Supreme Court. It is crucial that all Americans recognize that for the sake of all our rights, Election Day 2016 truly is judgment day.