The extraordinary order the Supreme Court issued this week in Zubik v. Burwell, the latest challenge to the contraceptive mandate in Obamacare, is a reflection of the deadlocked state of the court. That deadlock will hold for at least a year if Senate Republicans refuse to break their blockade of President Obama's nominee.
Cases large and small are ending in tie votes. The pace of decisions has slowed slightly, and fewer new cases are being granted. Scalia's commanding presence at oral arguments hasn't been filled—nor, presumably, his role as the court's éminence grise at private conferences where decisions are made.
This week, apparently dissatisfied with all its options in a major case pitting religious freedom against reproductive rights, the court went so far as to suggest a solution that neither side had advocated. That's far afield from what Chief Justice John Roberts has called a judge's traditional role—calling balls and strikes. […]
"I cannot think of another example where the Supreme Court, in an order, suggested a compromise and then asked the parties to brief it," [Erwin Chemerinsky, a Supreme Court scholar and founding dean of the University of California, Irvine School of Law] said. "I had to read it three times to understand what it was saying."
The Supreme Court turning to mediation is just one big, glaring indicator of the court's deadlock. The most apparent sign is how few cases the court is now agreeing to hear. It's only agreed to hear two new ones since Scalia died, "compared to an average of about 12 during the same period in recent years." The court seems unwilling to take on a lot of new cases when they could end up being deadlocked in decisions for the next year. It might also be a reflection of how frequently Scalia was among the four votes needed to take a case on. That information is never made public, but it's almost a sure bet that the conservative activist pushed for many cases to advance his agenda, from Citizens United to the ridiculous King v. Burwell case about subsidies in Obamacare, a case that should never have reached the highest court.
Clearly, the court is now deadlocked (and doesn’t want to be) in the Zubik contraceptive case, where a 4-4 decision would mean the lower court rulings stand. That would mean current law would apply to one big chunk of the country and not in seven states, which would be a big mess that the court wants to avoid.
There are potentially dozens of big messes for the court in the year ahead if it continues with only eight justices. But that's fine with Mitch McConnell and his merry band of nihilists. Breaking all three branches of government is their definition of winning. But breaking the Supreme Court is extraordinary, and it's why flipping the Senate means just about everything this cycle.
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