That thing Republicans rail against every chance they get—an activist Supreme Court legislating from the bench—is happening again, because the Republicans have forced it with the prospect of a year or more delay in getting a ninth justice confirmed. The court has found itself in the strange position as acting as a sort of mediator between conflicting parties in Zubik v. Burwell, the non-profit religious organizations' challenge to the contraceptive mandate in Obamacare. The parties have now filed the requested briefs on a compromise the court suggested for providing insurance coverage for birth control to employees.
The Obama administration maintained its position that the current accommodation for religious nonprofits is lawful and does not need to be changed. But it also added that if a change is required, then the court should make clear that employees of the religious nonprofits will still have access to contraceptive coverage in some form and that the new system is lawful, preventing yet another lawsuit from going forward.
The religious nonprofits, meanwhile, more enthusiastically welcomed the court’s proposed compromise, saying it was one of “many ways” of setting up a system that would be better than the current one.
“There are many ways in which the employees of a petitioner with an insured plan could receive cost-free contraceptive coverage through the same insurance company that would not require further involvement by the petitioner, including the way described in the Court’s order,” they wrote.
The non-profits might have been enthused by the compromise because it still gives them something, and a potential 5-4 court dominated by liberals could tell them to pound sand. Or they could be concerned that Justice Anthony Kennedy might be uncomfortable with a 4-4 deadlock in this case, which would mean lower courts' rulings would prevail and an unequal application of the law in a big chunk of the states. They could be worried that it's either accept this scheme from the court or lose 5-3.
But what's clear about this ongoing, slightly bizarre case is that a deadlocked court is broken, as broken as Congress. So, just like President Obama is dealing with a broken Congress with his executive actions, the Supreme Court is having to deal with it by extraordinary means.
Please donate $3 today to help turn the Senate blue. The future of the Supreme Court depends on it.
Comments are closed on this story.