Of late, America has been watching with eager anticipation to see how the Court will handle being one Justice short. It’s become clear that the Justices that remain are more reluctant to decide to take a case that isn’t already on their docket. But Monday morning provided a big hint as to how the Justices are going to handle the cases they have already decided to take (and have already heard): For the big ones, they may not really do anything.
On Monday, the Supreme Court handed down opinions in five of this term’s thirty-six remaining cases. These opinions run the gamut of legal issues, from plaintiffs’ ability to bring lawsuits to bankruptcy to what the use of certain letterhead means under the Fair Debt Collection Practices Act. We are going to focus on just one of them: Zubik v. Burwell.
Zubik is a case about whether the Affordable Care Act’s requirement that employers provide contraceptive coverage to their employees violates the rights of religious nonprofits who object, on the basis of their religion, to contraception. As the law stands, religious nonprofits must provide contraception coverage as part of their employees’ health insurance unless they submit a form that says they object to such coverage because of their religion to either the insurance provider or government. The nonprofits argue that this unduly burdens their religious freedom because it makes them complicit in providing contraceptive coverage; the government disagrees. Therein lies the question everybody was hoping the Supreme Court would answer.
A few weeks ago, the Court issued a truly bizarre order calling for additional briefing from both sides. Although each side had already presented the Court with its full argument in both written and oral form, the Court was not satisfied. Rather — in true law-professor fashion — it had a hypothetical scenario. Say, the Court pondered in the order, the employees could get contraception from their insurers “in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.” In that case, the nonprofits and insurers could just agree at the outset that the nonprofits’ coverage wouldn’t include contraception and that the insurer would tell the employees that it — not the employer — would provide free contraception. This addendum wouldn’t require any additional notice to either the insurer or the government. Would this, the Court asked, be okay?
Each side provided its answer. The nonprofits said that the “answer to that question is clear and simple: Yes.” Without the additional notice requirement, the nonprofits would no longer be unduly burdened in the same way. The government begrudgingly admitted that, at a cost, the law “could be modified to operate in the manner posited in the Court’s order.” It maintained, though, that the state of the law was fine and that the notice requirement was not that big a deal.
Fast-forward to Monday. With these answers in hand, the Court had all it needed to decide on the issue. Only it didn’t make a decision. In a per curiam opinion (one co-authored by the whole Court and not attributed to any single justice), the Court kicked the case back to the lower courts. Because both the nonprofits and the government had agreed that the Court’s hypothetical arrangement was feasible, the Court left it to the circuit courts to “arrive at an approach going forward that accommodates [the nonprofits’] religious exercise while at the same time ensuring that women” get the contraception they need. Put simply, the Court avoided resolving the issue itself and instead played mediator.
Although this sort of procedure is uncommon, it is not unprecedented. The Court listed three fairly recent cases in which it had vacated the lower court’s judgments and asked them to reconsider the case or certain issues it raised, but none involved quite the same circumstances at issue here. Two — Madison County v. Oneida Indian Nation of N.Y. and Kiyemba v. Obama — involved new developments that stood to change the lower courts’ reasoning. In the other, Villarreal v. United States, the Court asked the lower court to reconsider the case in light of the government’s position on the issue. In none did the Court attempt to mediate an agreement between the parties as it did in Zubik.
The Court’s punt of Zubik back to the lower courts was not the only big punt of the day. In Spokeo v. Robins, an eagerly awaited opinion that had been pending since November, the Court again avoided deciding the case itself. That case was about what sort of harm is necessary for a person to get into court. A bit of background: In order to bring a case to court, a person needs to have what is called “standing.” And in order to have standing, a person needs to have suffered a concrete and particularized “injury-in-fact.” In Spokeo, the issue was whether the violation of a statute alone — without any other injury — is enough to meet this bar. Without answering that question, the Court vacated the lower court’s judgement and sent the case back because the lower court had “focused on the second characteristic (particularity), but… overlooked the first (concreteness).”
That the Court on Monday punted two of this term’s most eagerly awaited opinions does not bode well for the other big cases pending right now. The possibility of a punt looms especially large in United States v. Texas, the big immigration case about DACA that the Court heard in April. As in Spokeo, that case has a potential standing problem. The states suing the government point only to the cost Texas must bear to give all DACA beneficiaries drivers’ licenses as their sole injury-in-fact. The Court seemed particularly interested in this issue during oral argument. And then there’s still the Fisher v. University of Texas affirmative action case, in which whispers of standing also came up in oral argument.
Will we get the answers we’ve been waiting for in this term’s remaining cases? Guess we’ll just have to wait and see.
Contact Shannon Grammel at sgrammel ‘at’ stanford.edu and Sean Janda at jandas ‘at’ stanford.edu.