A three-judge panel on the 11th U.S. Circuit Court of Appeals in Atlanta has upheld the birth control mandate in Obamacare, becoming the eighth circuit court to rule for the government. The Supreme Court is scheduled to hear arguments in Zubik v. Burwell, seven contraceptive mandate challenges consolidated, on March 23, and the 11th Circuit said the mandate should not be imposed in Georgia and Alabama until that ruling is made. And here's where it gets interesting.
Only one circuit court, the 8th, has ruled in favor of plaintiffs. The remaining courts have all ruled for the government. Because so many states are in the circuits that have had rulings, a big chunk of the country is affected.
If the court were to deadlock, which is entirely likely given it will hear the case with just eight members, one possibility is that the decisions of the lower courts would stand. That would mean religious nonprofits in seven states would not have to comply with the law, while in the remaining few dozens states covered in rulings would. That's problematic.
That’s not ideal, says David Cohen, a professor at Drexel University’s law school. “The Supreme Court normally tries to resolve circuit splits because they don’t want federal laws interpreted differently in different parts of the country,” he said.
The other possibility in the case of a deadlock is that the Supreme Court will hold over a decision until a justice with the deciding vote is finally confirmed. Which potentially could mean another year or more of limbo. Despite Sen. Orrin Hatch's assurances that that would be Antonin Scalia's wishes, a year of chaos in the federal judiciary on issues this important is not a good thing.
But that's not going to stop Republicans from making it happen. They want to maximize disfunction in every branch of government, and have pretty well succeeded at that so far. Only in their wildest dreams could they extend breaking government to the Supreme Court, and now that's in their grasp.