In case there is any doubt as to the importance of the presidential election for the future of the Supreme Court, consider the court’s decision Monday in Zubik v. Burwell.
At issue in Zubik is a regulation that requires non-profits to cover certain contraceptives in their health insurance plans. Non-profits don’t have to comply if they send either their insurers or the federal government a form stating that they object on religious grounds to providing contraceptive coverage. It is the requirement to make such a submission that Zubik and a number of other non-profits (the petitioners) have challenged as substantially burdening the exercise of their religion, in violation of the Religious Freedom Restoration Act of 1993.
Now, it was on February 13 that Justice Antonin Scalia died. In late March, the Court, with eight Justices sitting, heard the arguments in Zubik. In the conference held a few days later, the Justices split 4-to-4, or so it seems reasonable to surmise. If Scalia had not died, the 4-to-4 vote would almost certainly have been 5-to-4, for Zubik, and against the government. The case would have been decided—that being what the Court is supposed to do: decide cases and controversies. But not able to do that here, the court tried to find a way to move the issue in Zubik closer to a decision. Which it did by requesting supplemental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners insurance companies, without any such notice from petitioners.”
Having absorbed the additional briefing, the eight Justices in their opinion declared that “both petitioners and the Government now confirm that such an option is feasible.” In other words, both sides are closer to agreement, or so the Court thinks. The Justices vacated the judgments in the circuit courts whence the cases arose and told the courts to “allow the parties sufficient time to resolve any outstanding issues between them.” Before they return to court—if they think they have to.
We’ll see what happens in those cases while reasonably surmising that if Hillary Clinton is elected president, she will fill the Scalia seat with someone well to the left. And if her administration promulgates a new regulation on contraception that substantially burdens the exercise of religion, there will be a liberal majority in place to approve it.
