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Tortured Supreme Court Term Leaves Confusion In Its Wake

The bench of late Supreme Court Justice Antonin Scalia is seen draped with black wool crepe in memoriam inside the Supreme Court in WashingtonThe bench of late Supreme Court Justice Antonin Scalia is seen draped with black wool crepe in memoriam inside the Supreme Court in Washington
The bench of late Supreme Court Justice Antonin Scalia is seen draped with black wool crepe in memoriam inside the Supreme Court in Washington February 16, 2016. Photograph by Carlos Barria — Reuters

On Monday the Supreme Court limped across the finish line of a singular, ignominious term.

Though it left three significant rulings for its final day—including a 5-3 decision striking down two Texas restrictions on abortion clinics, and a unanimous order granting a retrial to former Virginia Governor Robert McDonnell, who had been convicted of public corruption—this term will be remembered best for what the court didn’t do.

In four cases, it reached no decision at all—stymied by 4-4 ties—while its rulings in other cases seemed distorted or blurred by the effort to avoid still more stalemates.

The stage was set in February when Justice Antonin Scalia died unexpectedly. It was well recognized that his absence left the justices evenly divided, 4-4, on many of the most divisive, politically charged issues that come before the court—gun rights, campaign finance, labor issues, states rights, religious freedom, the limits of congressional and executive power, and more.

President Barack Obama nominated an experienced, politically moderate federal appellate court judge, Merrick Garland, to replace Scalia. The Republican-led Senate, citing the fact that this is an election year, refused to give Garland a hearing or vote, arguing that the next president should fill the seat.

One can argue about whether there is precedent for the Senate’s approach—basically, it depends on how far back you’re willing to go. But there’s no question that the boycott hobbles the current court; wastes resources; deprives lawyers, judges, and litigants nationwide of the guidance the Constitution created the court to provide; and further politicizes the bench in the eyes of the public. (Chief Justice John Roberts, Jr., warned against the growing politicization of the confirmation process in a law school address just 10 days before Justice Scalia died.)

The foreseeable result of the Senate’s decision was what we saw this term—and what might persist next term, even after the elections, if the presidency and Senate are controlled by different parties, if the Senate’s filibuster rules do not change, and if political tensions do not abate. The backdrop for the great stalemate, as I describe in a separate article, is that the Supreme Court could be on the cusp of a historic change in direction—its first noticeable turn to the left in almost 50 years.

There were four official 4-4 ties this term, including two major ones, though, the dislocation was considerably greater than that.

When the Supreme Court ties 4-4, it issues no opinion. The appeals court ruling stands, but that ruling has no precedential weight outside the states bound by that particular court. In other words, about a year’s worth of attorney and judicial exertion is thrown out the window. It’s as if the court had never agreed to hear the case in the first place. This term’s 4-4 ties came in these cases:

  • Friedrichs v. California Teachers Association: Do non-union public employees have a First Amendment right not to have to pay dues to defray the costs of collective bargaining? According to the New York Times’s Linda Greenhouse, after oral argument but before Scalia’s death, the court actually voted in favor of the non-union employees, with Chief Justice John Roberts, Jr., assigning the majority opinion to be written by Justice Samuel Alito. After Scalia’s death, however, the court was split. The tie left intact the ruling of the U.S. Court of Appeals for the Ninth Circuit (in San Francisco), which had come out the other way. (After the tie was announced, the plaintiffs asked for a rehearing. The Supreme Court has not yet ruled on the request, perhaps planning to hold the petition until a ninth justice is seated.)
  • United States v. Texas: Did President Obama’s executive order, “deferring” deportation of more than 4 million undocumented aliens who are the parents of U.S. citizens or lawful residents, overstep his powers to act without Congress? The tie dashed a key initiative of Obama’s second term, leaving intact a 2-1 ruling of the U.S. Court of Appeals for the Fifth Circuit, which found that his program was most likely illegal. That court upheld a nationwide preliminary injunction preventing Obama’s policy from taking effect. The case is now expected to proceed to a full trial before a district judge in Brownsville, Tex., but could possibly make its way back to the Supreme Court one day.
  • Dollar General Corp. v. Mississippi Band of Choctaw Indians. Though no headliner, this case was of significance to many businesses. Dollar General, which operates a store on the Choctaw reservation, was sued civilly in an Indian tribal court by a boy who said the store manager sexually assaulted him. The company went to federal court in Mississippi to stop the tribal court proceeding, arguing that it lacked jurisdiction. The tie vote means that a ruling of a split panel of the federal Fifth Circuit (based in New Orleans), which ordered the store to submit to tribal jurisdiction, stands.
  • Hawkins v. Community Bank of Raymor: This was a case challenging the validity of a Federal Reserve rule interpreting a federal law that bans discrimination against loan applicants on the basis of marital status. The case might have provided general guidance to lawyers about how to interpret statutes, and about the leeway agencies have when interpreting them. The ruling of the Eighth Circuit Court of Appeals (based in St. Louis), refusing to apply the rule, stands for now, even though it contradicts the ruling of the Sixth Circuit (based in Cincinnati) and four state supreme courts.

The failure to decide these cases has more impact for attorneys and judges than the above summary suggests, because each case really presents more than one legal question. For instance, United States v. Texas—wholly apart from the marquee immigration question it posed—also presented a terribly important question about “standing”—that is, the question of who gets to go into federal court to complain about a federal policy in the first place.

That case had been brought by then Texas attorney general, now Texas Governor, Greg Abbott. (Abbott and his successor as attorney general, Ken Paxton, have together brought more than 40 suits challenging the propriety of various federal initiatives since President Obama took office.)

As a federal constitutional matter, to sue in federal court, you have to have suffered some concrete injury from the law or regulation you’re challenging. Abbott’s stated basis for challenging Obama’s immigration deportation deferral program was thin. If the program was upheld, he argued, Texas would have to issue drivers licenses to the aliens whose deportations were deferred, and since the fees it charges for drivers licenses aren’t sufficient to cover the expenses of issuing them, the state would lose money. The federal government lawyers protested that Texas’s injury was self-created. If the state didn’t want to lose money on drivers licenses it could raise its fees.

The important standing question raised by the case—capable of recurring in an infinite number of permutations—remains unresolved as a result of the tie vote.

Aside from literal ties, there were other important Supreme Court cases that produced outcomes that seemed contorted by the effort to avoid a tie.

The most obvious was Zubik v. Burwell. In that case, certain Catholic nonprofits challenged, under the the Religious Freedom Restoration Act, provisions of the Affordable Care Act designed to ensure that employees receive coverage for contraception. In the end, the eight-justice court punted. In an unsigned opinion, it said that the parties’ positions at oral argument suggested that they might be able to work out an amicable settlement among themselves, and it urged them to try.

In two other cases, majority Supreme Court opinions seemed to offer unusually fuzzy guidance to lawyers, though it’s hard to say for sure whether the horse-trading required to avoid a tie was the root cause, or whether the case would have come out the same way with a full complement of justices.

In Universal Health Services Inc. v. United States ex rel. Escobar, for instance, an important False Claims Act case, the court voted 8-0 to give with one hand what it took away with the other. It endorsed a controversial doctrine—the notion that a government contractor may implicitly commit fraud if it applies for payment without being in full compliance with applicable statutory and regulatory rules. At the same time, though, it also required that the rules violation be “material”—that is, important, and not just technical. It then sent the case back to the lower courts without opining where, on this spectrum, the case before them actually fell.

The widely anticipated ruling in Spokeo v. Robins—one of the most important business cases of the term—was also clouded with a bit of ambiguity.

Spokeo was another case about the constitutional “standing” requirement—the idea that plaintiffs must suffer some “concrete injury” before they can sue in a federal court. Spokeo runs a “people search engine” that enables web surfers to look up background information about anyone. The plaintiff, Thomas Robins, said that Spokeo published false information about him, though the examples he gave—that he was married, when he wasn’t; that he had children, when he didn’t—were not particularly damaging. More important, it wasn’t clear that anyone other than Robins, who sought to bring a class action, had ever viewed the inaccurate information prior to his filing his lawsuit. Robins maintained that none of that mattered because, under the Fair Credit Reporting Act, Congress had given him the right to sue if a consumer reporting agency, like Spokeo, negligently published inaccurate information about him without his having to prove more. The federal appeals court for the Ninth Circuit (based in San Francisco) agreed.

The Supreme Court reversed, 6-2, finding that the Constitution did require that Robins show more concrete injury than that. Yet there was also a puzzling proviso in the majority opinion, perhaps the price of getting liberal-leaning Justices Stephen Breyer and Elena Kagan to sign on, stressing that “the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact”—i.e., constitutional standing to sue. It’s unclear yet whether lower courts will interpret the proviso to swallow the rule.

Finally, there’s one last way in which the business of the Supreme Court this term has been stymied by the unfilled ninth seat. The court is simply taking fewer new cases. It’s has agreed to review many fewer lower-court rulings than it had at this time the last three years, according to statistics kept by SCOTUSblog.

And it’s not hard to see why. Given the manifest futility of reaching resolution on a sizable slice of its bread-and-butter cases, why bother?