At Supreme Court, Tie Votes Leave Strike Zone Unclear

           UPDATE: The Supreme Court ended a major case for public employee unions with a 4-4 tie that upheld a lower court decision allowing the unions to require non-members to pay a so-called agency fee to cover the cost of representing them in collective bargaining.
      The decision in Friedrichs v. California Teachers Association [March 29] was the second case of the term to end in a 4-4 tie since Justice Scalia’s death left the court with eight instead of nine members. Conservatives had viewed the case as a good opportunity to use a free-speech argument to overturn a 40-year-old precedent allowing public employee unions to require some payments from objecting non-members.
      Arguments in the case indicated that the justices were split along conservative-liberal lines, with Scalia seen as a likely vote with the other conservatives. The tie vote ends the individual case, but sets no national precedent. The decision is one indication that the Court will go ahead and issue 4-4 rulings even in important cases instead of scheduling them for rearguments after the vacancy is filled.

* * *

      When Gary Hawkins and Chris Patterson applied for a loan to start a homebuilding company, the bank required their wives to sign as guarantors. The husbands’ company defaulted, and the banks responded by suing the wives along with the husbands for the full $2 million in loans.
      Valerie Hawkins and Janice Patterson responded by accusing the bank of violating the federal law against discrimination in credit on the basis of marital status. The case reached the Supreme Court after the federal appeals court in St. Louis ruled for the bank, and the case ended last week [March 22] in a 4-4 tie that upheld the ruling in the bank’s favor.
      The decision in Hawkins v. Community Bank of Raymore was the first of what could easily be a dozen decisions during the Supreme Court’s term to end in 4-4 ties with no definitive ruling on the legal issue posed. Justice Antonin Scalia’s death leaves the court with eight instead of nine justices, who are evenly divided between conservative and liberal blocs on many issues. A 4-4 vote affirms the lower court decision under review, but does not establish a national precedent.
      With Scalia’s death halfway through the current term, some 4-4 decisions were inevitable. But the Senate Republicans’ refusal to consider President Obama’s nomination of federal judge Merrick Garland to fill the vacancy creates the likelihood of more indecisive decisions during the court’s new term that opens in October. As progressive groups urge on Twitter, “#WeNeedNine.”
      In Hawkins, the tie vote upholds the decision by the Eighth U.S. Circuit Court of Appeals that struck down a Federal Reserve regulation defining a loan guarantor as an “applicant” under the federal Equal Credit Opportunity Act. The Cincinnati-based Sixth Circuit appeals court has upheld the Federal Reserve’s regulation. So spouses in the four Sixth Circuit states — Kentucky, Michigan, Ohio, and Tennessee — now have protections that are denied to spouses in the seven Eighth Circuit states that stretch from the Dakotas south to Arkansas.
      A tie vote seems a strong likelihood in a more significant case argued last week. In Zubik v. Burwell, argued on March 23, religious schools and charities are challenging the Obama administration’s effort to make sure their employees get no-cost access to contraceptives under their health insurance plans. The religious organizations — religious schools, religious charities, and the like — say they object to some forms of contraception covered under the Obamacare mandate.
      The administration crafted an accommodation. Under the plan, a religious nonprofit must notify its insurer or the government of its objection so that the insurer can provide the coverage on its own. But the religious groups say that accommodation does not go far enough. They say it still makes them complicit in providing coverage to which they object and it “hijacks” their health insurance plan.
      This case could be called “Son of Hobby Lobby,” the 2012 decision that allowed religiously motivated employers to get out from under the contraceptive mandate. In that case, Scalia provided the fifth vote for the conservative bloc to prevail over the liberal justices in dissent.
      Predictably, the eight remaining justices appeared to be in the same lineup in the arguments on Wednesday. Any thought that Chief Justice John G. Roberts Jr. or Justice Anthony M. Kennedy might switch sides appeared to go up into thin air when each incorporated the “hijack” phrase into questions for the government’s lawyer, Solicitor General Donald Verrilli Jr.
      In this case, the tie goes go the government, which won in four different federal circuits in the seven cases that the Court agreed to review. The government notched wins in four other circuits, but lost in the Eighth Circuit. Thus, a 4-4 vote in this case will again mean that women in the Eighth Circuit will lack a legal benefit enjoyed by women in other circuits — in this instance, representing half the country (24 states plus the District of Columbia).
      In the weeks after Scalia’s death, two justices, Samuel A. Alito Jr. and Stephen G. Breyer, remarked at previously scheduled programs that the Court would manage with eight justices for the time being. Alito even noted that the Court in the 19th century had had an even number of justices for periods of time. Apparently, Alito quipped, justices back then were more agreeable than they are today.
      Admittedly, only a fraction of Supreme Court decisions are by 5-4 votes, around one-fourth on average. So the eight-justice Court can reach definitive results in most cases. Still, the 5-4 cases are quite often the most significant. So 4-4 ties mean the Court is not fulfilling its role as effectively as the public has a right to expect.
      As chief justice, Roberts has a broader stake on the matter than any of the associate justices. As a sports fan, he must know that there are no ties in baseball. And, to adapt his confirmation hearing metaphor, he must know that an umpire needs to have a consistent strike zone: not a different zone for different teams, different leagues. Thus, it is understandable that some Court watchers think it is time for Roberts to tell the Senate that the Court functions best with a full complement of nine justices and that the Court is being hurt and will be hurt further by a protracted, politically motivated delay in filling the empty seat.

Religious Liberty Claims Run Amok

      Women’s access to contraceptives will be the main issue when the Supreme Court hears arguments this week in its fourth encounter with President Obama’s health care reform plan. An array of nonprofit religious organizations are challenging the requirement to notify the government or their health care insurer to get out of the mandate to provide no-cost contraceptives as part of their employee health insurance plans.
     A leading death-with-dignity group is urging the justices, however, that a ruling for the religious groups also could undermine state laws protecting the right of terminally ill patients to reject extraordinary life-sustaining measures. In a friend of the court brief, the Oregon-based Compassion and Choices worries that a broadly phrased ruling in favor of the religious liberty claims “could, inadvertently, substantially impair the implementation of people’s end-of-life healthcare choices.”
      Lawyers supporting the religious groups in the case who spoke at a Cato Institute forum on Friday [March 18] discounted the group’s fears of a slippery slope decision affecting right-to-die cases. But the concerns illustrate the Pandora’s box that the court opened two years ago when it first recognized a religious liberty exemption from the contraception mandate under Obamacare.
      Religious liberty, it seems, has now displaced patriotism as the last refuge of the scoundrel. Legislatures in more than a dozen states have either enacted or considered broadly phrased religious freedom laws aimed at allowing business to discriminate against gays and lesbians.
      The Georgia legislature approved a bill along those lines last week, but a late-added provision specifies that it would not allow discrimination prohibited under federal civil rights law. Gov. Nathan Deal, a Republican, has not said whether he will sign the bill. Business groups oppose it even with the late modification.
      The Supreme Court’s 5-4 ruling in the earlier contraception mandate case, Burwell v. Hobby Lobby Stores (2014), allowed private employers to claim an exemption from the contraception mandate under the federal Religious Freedom Restoration Act (RFRA). The Obama administration responded by crafting an exemption for religious nonprofits, such as Catholic colleges or charitable organizations.  Under the “accommodation,” a religious nonprofit is required only to send its health care insurer or the government a form or letter claiming the exemption; the insurer then would be required to provide the contraception coverage itself.
      In Zubik v. Burwell, the religious nonprofits are arguing that the exemption still impermissibly burdens their religious rights under RFRA. “This is a strange case to wrap one’s head around,” Steve Schwinn, a professor at John Marshall Law School, aptly writes in the American Bar Association publication Preview. (David Zubik is bishop of the Catholic diocese of Pittsburgh; Sylvia Burwell is secretary of the Department of Health and Human Services.)
      At the Cato program, Lori Windham, a senior counsel with the Becket Fund, a religious liberty litigation group, argued that the administration’s workaround amounts to “the government coming in and taking over a piece of your contract” with the health insurer. She also argued that the government cannot prove the “compelling interest” in women’s health needed to get out from under RFRA because of other exemptions from the contraception mandate.
      In response, Elizabeth Wydra, president of the Constitutional Accountability Center, argued that the exemption being claimed by the religious nonprofits “would stretch the concept of religious liberty beyond a point where it cannot be sustained.” Wydra noted that conscientious objectors to military service are required to do much more than fill out a form to claim the exemption. Besides proving their right to the exemption, she explained, the conscientious objector has to perform some form of alternative service.
      The religious nonprofits argue in effect that claiming the exemption would make them complicit in the health insurer’s actions providing forms of contraception to which they object. The death-with-dignity group sees the risk of a similar argument from Catholic hospitals or hospices subject to laws in 47 states requiring them to respect patients’ rights to refuse life-sustaining measures.
      Laws on the books in all states except Michigan, North Carolina, and Washington require health care providers with moral objections to patients’ health care decisions or advance directives to comply with patients’ requests for transfer to a provider that will comply with their wishes. It is not fanciful to imagine that a Catholic hospital could argue that complying with the transfer request burdens its religious liberty by making it complicit in an end-of-life decision prohibited under Catholic teaching.
      In Hobby Lobby, Justice Ruth Bader Ginsburg complained in dissent that the court’s indulgence for the religious rights of the company’s family owners came at the expense of the rights of their employees under the federal regulation. She also worried that the decision opened the door to claims for religion-based exemptions from anti-discrimination laws, a fear that Justice Samuel A. Alito Jr. discounted in the majority opinion.
      So far, courts are rejecting efforts by bakers and florists, for example, to claim religion to justify refusing to serve same-sex couples. But the Supreme Court has not ruled on the issue, and lawmakers in many states are doing what they can to create a religious exemption for anti-LGBT discrimination. And in the new case, the justices again have to decide whether women’s access to health care must be sacrificed to a religious liberty claim stretched further than any previously recognized in American law.

Garland: Law, Not Justice, as Hallmark of Career

      Merrick Garland was part of a panel of three highly regarded federal judges in 2000 that considered a carefully litigated lawsuit seeking to win voting representation in Congress for the people who live in the nation’s capital. Sitting as the appeals court judge on a special three-judge district court, Garland joined with Judge Colleen Kottar-Kotelly in rejecting the suit even after acknowledging in an opening passage that the “grievances” complained of by District of Columbia citizens were “serious.”
      In a jointly authored opinion for the court, Garland and Kottar-Kotelly concluded that they could find no basis to require voting representation for D.C. residents. Seats in the House of Representatives are apportioned among the “states,” and the District of Columbia simply is not a state, the two judges wrote in Adams v. Clinton. Point by point, they said that nothing in the Constitution gives D.C. residents the same voice in Congress that other Americans enjoy: not the Equal Protection Clause, not the Privileges and Immunities Clause, not the clause that guarantees “a republican form of government.”
      In a forceful and equally detailed dissent, Judge Louis Oberdorfer concluded that “principles of equal protection” entitled D.C. residents to voting representation in Congress. The plaintiffs appealed to the Supreme Court, but the justices affirmed Garland’s co-authored decision without hearing arguments.
      Garland’s role in the case exemplifies the reasons why his nomination to the Supreme Court on Wednesday [March 16] simultaneously produced such widespread praise but muted disappointment as well. Garland’s many admirers – elected officials in both parties and lawyers and advocates across the ideological spectrum – depict him as a judge’s judge: careful, moderate, evenhanded, meticulous, on and on. But the D.C. voting rights case also illustrates that this kind of judicial craftsmanship can sometimes limit the courts’ ability actually to do justice.
      Garland’s truly impressive resume — Harvard degrees, prestigious judicial clerkships, Arnold & Porter, Justice Department — has no evidence as such of working for social justice, civil rights, or civil liberties. He is a former prosecutor with no record of criminal defense or pro bono cases.
      If confirmed, Garland would join a court with two former prosecutors — Alito and Sotomayor — and no former criminal defense lawyers. Obama passed up the chance to nominate Judge Jane Kelly to be the first former public defender on the court, reportedly fearful that opponents could use her former clients in attack ads.
      Announcing the nomination in a Rose Garden ceremony, President Obama depicted Garland as the very antithesis of the liberal activist judge so feared by Republicans and conservatives. Garland struck a similar theme. A judge, he said, “must put aside his personal views or preferences and follow the law — not make it.” Garland’s record on the U.S. Court of Appeals for the District of Columbia Circuit — he completes his 19th year on Sunday [March 20] — seems to bear him out.
      Consider a pair of cases involving Guantanamo detainees. In June 2008 Garland joined two Republican appointees in the D.C. Circuit’s first decision rejecting the government’s holding of a prisoner — specifically, a Chinese Uighur — as an enemy combatant. Five years earlier, however, Garland had joined a unanimous panel that held, under existing Supreme Court precedent, that federal courts had no habeas corpus jurisdiction over Guantanamo cases. A year later, the Supreme Court reversed that decision (Rasul v. Bush).
      Garland left Arnold & Porter twice — first to work as an assistant U.S. attorney and then to serve as second in command in the Justice Department’s criminal division. It was in that capacity that he personally directed the prosecution of the Oklahoma City bombers and oversaw the prosecution of Unabomber Ted Kaczynski. His experience as prosecutor seems reflected in his record as a judge in criminal law cases. “Judge Garland rarely votes in favor of criminal defendants' appeals of their convictions,” SCOTUSblog’s Tom Goldstein wrote in an assessment of his record in 2010 when Garland was short-listed for the Supreme Court seat being vacated by Justice John Paul Stevens.
      Goldstein concluded that Garland would have shifted the court to the right on criminal law had he been nominated and confirmed then. Oddly, he might also shift the court to the right if confirmed to succeed the conservative justice Antonin Scalia. As Scalia often boasted, his strict application of some Bill of Rights protections often favored criminal defendants.
      In other areas, Garland has shown himself to be no patsy for the government, no roadblock for justice-seeking plaintiffs. He dissented in September 2009 from a decision barring detainees from suing CIA contractors for unlawful detention and joined a unanimous decision in 2011 reviving the prosecution of Blackwater guards for a shooting in central Baghdad that left 14 people dead.
      Garland wrote for a 2-1 majority in September 2012 to reinstate an age discrimination suit against the State Department, which claimed the right to enforce France’s mandatory retirement law against a U.S. citizen stationed abroad. He joined the decision in April 2013 to revive a suit stemming from the allegedly political firings by the Bush administration’s Justice Department.
      In rating Garland in 2010, Goldstein viewed him as the least liberal of the two other front-runners, including the eventual nominee: Elena Kagan. This time around, Garland appears to have been chosen over the younger and newer D.C. Circuit judge: Sri Srinivasan, whose record offers few clues about his position on the ideological spectrum. Women’s and minority groups were hoping for more diversity on the court, while some progressives appeared to viewed moderation as a drawback, not a strength.
      Garland’s 19 years’ worth of opinions and votes would give senators of both parties much to examine and debate in confirmation hearings. Roberts, Alito, Sotomayor, and Kagan all submitted themselves to the process and all survived, though by Senate votes more divided each time along party lines. Garland surely could survive if given the chance, but Senate Republicans appear to be dug in on their position that he will get no hearing, much less a vote. History may well list Merrick Garland as the best Supreme Court nominee ever not to get a hearing or a vote.

Republicans' New Rule on Supreme Court Appointments

      Some of the Republican senators backing the planned obstruction of President Obama’s eventual nominee for the Supreme Court are now conceding that the tactic is pure politics with barely an ounce of historical precedent or constitutional principle to justify it.
      “We are setting a precedent here today,” South Carolina’s Lindsey Graham said at a meeting of the Senate Judiciary Committee on Thursday [March 10]. In effect, Graham explained, the new rule would prevent filling a Supreme Court during the last year of a four- or eight-year presidency. “We're headed to changing the rules, probably in a permanent fashion,” he said.
      Back in his home state, Wisconsin’s Ron Johnson was making clear that he viewed the supposed rule against considering Supreme Court nominations in the final year of a president’s term as applicable to this case only. Johnson replied to a radio interviewer’s question that it would be “a different situation” with Mitt Romney in the White House. “If a conservative president’s replacing a conservative justice,” Johnson explained, “there’s a little more accommodation to it.”
      A day later, Utah’s Orrin Hatch said in effect that the Senate can do whatever it wants. “The Senate's job in each situation is to decide how best to exercise its advise and consent power,” Hatch said at a Federalist Society luncheon.
      Even as Republicans were hardening their no-hearing, no-vote stance, Obama was sticking to standard operating procedure for Supreme Court vacancies. Taking a question from a reporter after his meeting with Canadian Prime Minister Justin Trudeau, Obama said he was reviewing possible candidates in hopes of “quickly” submitting a nomination so that the court could have its full complement of nine justices.
      Obama promised that his nominee — and he was careful never to use a gender-specific pronoun — would be someone who “any reasonable person” would view as “eminently qualified.” The nominee, Obama elaborated, would be “an outstanding jurist” who appreciated “the necessary humility of a judge” but also “the critical role” courts play in protecting rights.
      Reports leaking out of the vetting process identified six sitting federal judges as on a semi-short list of leading candidates. From their resumes, all six appeared to be qualified in terms of academic credentials, legal experience, and judicial service. Five of those on the list had been appointed by Obama within the last four years, but each had more experience on the federal bench than either David Souter or Clarence Thomas had before their appointments to the Supreme Court.
      By week’s end, the three women on the list appeared to have been dropped and, according to Reuters’ Lawrence Hurley, the choice narrowed to three men serving on federal courts of appeals: Merrick Garland and Sri Srinivasan of the U.S. Court of Appeals for the District of Columbia Circuit and the Ninth Circuit’s Paul Watford. Out of the running were Patricia Millett of the D.C. Circuit, Jane Kelly of the Eighth Circuit, and Kentaji Brown Jackson, a district court judge in D.C.
      Whatever their relative qualifications, Kelly and Brown Jackson had stood out on the list as former federal public defenders: Kelly in Iowa for nearly 20 years before her appointment in 2013 and Brown Jackson in D.C. from 2005 to 2007. None of the current justices has any significant experience in criminal defense, and no former public defender has ever been appointed to the court.
      Kelly had been a tempting choice, it was thought, on the supposition that Senate Judiciary Committee Chairman Chuck Grassley would have a hard time denying a hearing to a fellow Iowan. At the committee meeting, however, Grassley snorted that he was not going to be influenced by that kind of “political ploy.” 
      Brown Jackson had political appeal as a diversity two-fer: an African American woman. But she was the youngest of the six — age 45 — and the lowest in the judicial ladder. No district court judge has been elevated straight to the Supreme Court since Edward Sanford in 1923. On the current court, only Sonia Sotomayor ever served as a trial judge; six other justices went straight to circuit courts and then to the high court. Elena Kagan had no prior judicial experience.
      Diversity was seen as a plus for Srivinisan, who was born in India and stood to become the first Asian American justice, and for Watford, who could become the third African American justice after Thomas and Thurgood Marshall. Both are in their late 40s. Garland, the other candidate reportedly still in the running, is a white man who, according to NPR’s Nina Totenberg’s hard-nosed analysis, offered “no political pluses” for Obama. At age 63, he also offered a shorter legacy for a president interested in leaving a mark on the law for decades to come.
      As with the Oscars, it would be an honor to be nominated, but the nominee may feel, like the man ridden out of town on a rail, that but for the honor it would have been better to walk. Texas’s senior Republican senator John Cornyn had suggested earlier that Obama’s nominee “will bear some resemblance to a piñata.”
      Obama told reporters that he planned to do his job and expected that the Senate would do its job too. He added the hope that the nomination would not become “an extension of our polarized politics.” But it is, and with no truce in sight.

Time to Protect Abortion Rights From 'Undue Burden'

      The demonstrators from opposing sides who massed on the sidewalks in front of the Supreme Court plaza accurately understood what was at stake as the justices considered a challenge to a Texas law strictly regulating abortion clinics. Anti-abortion demonstrators carried placards with an image of a fetus and the slogan “Protect Life.” Abortion-rights advocates countered with the well-tried slogan from the other side: “My body, my choice.”
      The Texas legislature passed the law at issue, known as HB 2, for the ostensible purpose of protecting the health and medical safety of women undergoing an abortion at one of what were formerly 41 abortion clinics in the Lone Star State. But liberal justices largely demolished that claim during the arguments on Wednesday [March 2] that Chief Justice John G. Roberts Jr. allowed to run 25 minutes past the allotted hour.
      The regulations require clinics to meet the physical plant and operating requirements imposed on so-called “ambulatory surgical centers” even though abortions are outpatient procedures. Doctors performing abortions also must have admitting privileges at a hospital within 30 miles of the clinic, supposedly to ensure the physician’s ability to provide continuing care in the rare event of complications requiring hospitalization.
      The clinics and abortion-rights groups warned the legislature that the clinic regulations would be expensive to meet and the admitting privileges requirement difficult to impossible to satisfy. From all that appears, the warnings have been proved correct. The law was passed in 2013 and clinics were given until September 2014 to comply with implementing regulations. Today, 19 of the 41 clinics have closed; and others would have been forced to close but for the Supreme Court’s interim stay blocking parts from going into effect.
      Outside the Supreme Court, demonstrators understood that the case, Whole Woman’s Health v. Hellerstedt, was about a woman’s right to choose versus the state legislature’s evident effort to obstruct that right. Some of the pro-lifers carried signs that read, “Protect Women, Protect Life,” with the hashtag #Protectthemboth. Even if their professed concern about women’s health was sincere, the real motivation behind the law came through loud and clear.
      Inside the courtroom, opposing lawyers and justice struggled with the Supreme Court’s Delphic standard from the 1992 decision, Planned Parenthood v. Casey. An abortion law imposes an unconstitutional “undue burden,” the court said in the pivotal opinion coauthored by Justice Anthony M. Kennedy, “if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”
      Conservative justices — Chief Justice John J. Roberts and Justice Samuel A. Alito Jr. —  tried to buttress the state’s view that the law was a good-faith enactment to protect women’s health with no intent or effect to burden the woman’s choice. But the liberal justices, including all three female justices, showed the patent illogic of the health rationale and the law’s evidently “undue burden” on abortion rights.
      Defending the law, Texas’s solicitor general Scott Keller insisted that the state “acted to improve abortion safety.” He and quickly added that abortion clinics remain open in the state’s six most populous areas.
      Justice Ruth Bader Ginsburg interrupted to note the evidence that one-fourth of Texas’s women are more than 100 miles from the nearest clinic in the state. Keller replied that women in the El Paso area could drive one mile across the state line to a clinic in New Mexico. Ginsburg pointed out that New Mexico did not have regulations like those in Texas. “If that’s all right for the women in the El Paso area, why isn’t it all right for the rest of the women in the state?” she asked.
      Later, Justice Elena Kagan asked why Texas imposed hospital-like regulations on abortion clinics, but not on facilities where doctors performed operations with far more complications: colonoscopies and liposuctions. Keller said the record included evidence of complications at abortion clinics, but Kagan underscored Keller’s failure to dispute her premise. Sotomayor followed by questioning the need for hospital-like standards for women undergoing medication abortions that entail nothing more than taking pills.
      In his turn, Justice Stephen G. Breyer questioned the requirement that clinics’ doctors have admitting privileges at a local hospital. The requirement may seem minimal, but in fact hospitals may reject the out-of-town doctors who often staff abortion clinics for parochial reasons or to avoid any connection to the abortion debate.
      Breyer noted that before the law clinics had to have some working arrangement to transfer a patient to a local hospital if necessary. He asked Keller for any examples when a doctor was unable to transfer a patient but for the lack of admitting privileges. “That is not in the record,” Keller conceded.
      In upholding the law, the Fifth U.S. Circuit Court of Appeals essentially said courts had no business second-guessing the legislature. With Justice Antonin Scalia’s death, a possible 4-4 tie would affirm that decision and leave Texas’s law on the books. With the pivotal vote, however, Kennedy made clear his view that the court had to consider the evidence about the law’s burden and the state’s claimed justification together.
      At one point, Kennedy suggested remanding the case for more evidence. That could buy the court time to wait for a possible ninth justice, but the women of Texas might understandably want to see this burden lifted now rather than later.