The Supreme Court is scheduled to hear one of several cases on healthcare on Tuesday, a session that may or may not go forward now following the death of Justice Antonin Scalia. That case, regarding patent infringement, is not likely to be terribly controversial and probably not going to end up in a 4-4 split. However, in just two weeks the court is scheduled to hear the Texas abortion law challenge. Later in the term, it’s set to hear challenges by not-for-profit religious organizations against Obamacare's birth control mandate. Those cases highlight just how chaotic it could be to have a deadlocked Supreme Court for the next year, which is what will happen if Republicans hold firm in their refusal to confirm any Obama nominee.
In the abortion case, the court is to decide whether Texas' law requiring doctors at abortion clinics to have admitting privileges at local hospitals—and that abortion clinics meet the same medical standards as ambulatory surgical centers—is constitutional. As it stands, the 5th U.S. Circuit has upheld the law. Presuming swing vote Anthony Kennedy sides with the conservatives, a 4-4 split would let that 5th Circuit decision stand. But then it doesn't apply just to Texas—Louisiana and Mississippi are also in the 5th Circuit and have similar challenged laws.
“You're talking about a big chunk of the country,” said Robin Fretwell Wilson, a law professor at the University of Illinois.
Fretwell Wilson said she believes it's unlikely the court would be content to simply let the circuit decision stand in such a case. If there's a split vote, she said, the justices may want to re-argue the case when a ninth justice is confirmed.
Even more complicated are the various challenges to the Obamacare birth control mandate. The accommodation the administration has made for religious non-profits, these organizations claim, are not adequate—they don't have to provide birth control to their employees, but the very act of informing their insurance companies or the administration that they will not pay for covering contraceptives so that the insurers pick up the costs means they have icky sex stuff on their hands.
A 4-4 split in those cases, scheduled for argument March 23, would mean different law in different parts of the country because seven circuits have sided with the government and one has sided with the religious not-for-profits.
The justices may feel the issue is too big to leave up to individual circuit courts, Fretwell Wilson said. "I would see a lot of urgency in wanting to have one resolution for the country on that question."
Nonetheless, says court watcher Nick Bagley, a law professor at the University of Michigan, the court is probably going to continue to hear the cases. "Before a case is argued, you don't know how it's going to come out, so unless the court wants to pitch its tent and say it's closed for business, it's going to have to keep hearing cases. […] They may feel like they can't hold a case for 10, 11, 12 or 13 months while we get a new president, nominate a new appointee and affirm that new appointee."
If there's a 4-4 split on some of these big, controversial cases, they could decide to have a rehearing or not, depending apparently on just how much chaos it would create to let lower court decisions stand. What this means, as usual, is that all eyes are on swing vote Anthony Kennedy.