On the merits, Monday’s Supreme Court unsigned opinion in Zubik v. Burwell, a vitally important contraception mandate case, is being read by some as a win for the Little Sisters of the Poor because the court didn’t brush off their claims that notifying the government they are unable to cover contraception for employees, thereby enabling insurers to do so, burdens their religious freedom. Others are hailing it as a big win for the Obama administration, which will get most of what it wanted if the Little Sisters can live with the court’s proposed compromise, including “seamless” health coverage for women employees. Really, though, Zubik—which raised crucial questions about whether one person’s religious freedom can trump a worker’s entitlement to preventative healthcare—is mainly just an inkblot for the ages; a placeholder until a real court can be reconstituted to do its job. It’s also as close as the Supreme Court will come to sending out a mayday signal. In a tiny, nearly inaudible voice buried in the non-decision, the court is hissing, Heeelp meeee!
The undisputed fact behind the surprising per curiam order in Zubik—the lead case in a challenge to the Affordable Care Act’s mandate that religious nonprofits cover contraception for women workers—is that the court is struggling. Whether you believe that, by asking the parties and lower courts to work this thing out by themselves, the Supreme Court shamefully punted or exhibited admirable judicial modesty, it is indisputable that the eight justices sent the case back to the appellate courts for repairs because the Court can’t resolve it shorthanded. The high court only agrees to hear a tiny number of appeals each term, and the same court that ruled on Hobby Lobby in 2014 would not have granted a hearing in Zubik if the ultimate purpose had been to release a confusing, unsigned order importuning the courts below to make this conflict please go away. As President Obama noted in an interview Monday with BuzzFeed, “my suspicion is if we had nine Supreme Court justices instead of eight, we might have had a different outcome.”
The Supreme Court is not currently doing its job. It has accepted fewer cases for next term than it’s granted in 70 years because it can’t resolve them. A massive public unions financing case resulted in a tie in March. A death penalty appeal deadlocked on Thursday. The fate of affirmative action may well be decided by just seven justices because Justice Elena Kagan is recused. The court generally prefers not to overturn decades of constitutional doctrine with only seven players on the field. The mess that will be the Texas abortion challenge, and also the Texas immigration challenge, may end in tied votes.
You can characterize the current court, with its set of equally terrible choices—between deadlocking 4–4 on some major cases and deciding not to decide others until a sunnier, fully staffed future day—as dysfunctional, or broken, or crippled, or as losing its collective will to live. Or you can see this as a refreshing act of judicial avoidance and restraint, and a way to take advantage of this moment to reign in a too-powerful institution. Or you may see it as a signal that partisanship will now infect the court forever. But whether you find yourself grateful that the eight-member court is hobbled or worried about it, hobbled the current court is.
Sadly, you will never hear that from the justices themselves. The court has no army, and no marketing budget. The court relies on us to believe that it’s magic. The power and legitimacy of the whole institution depends upon the idea that regardless of the political maelstrom surrounding it, the court is doing just fine and always will be. That’s why the order in Zubik sounds like a principled legal argument, even as it’s a hodgepodge of justifications for the court’s efforts to craft a micro-settlement—and the court’s simultaneous refusal to pick sides. Zubik is less about minimalism than about paralysis. But the court, in pretending that it can manage just fine with eight justices, or three, is actually aiding and abetting in the argument that the best court does nothing at all.
Nobody on the court can say: “Please give us a ninth justice so we can get back to work.” That sounds like a plea for a Justice Merrick Garland. That is why it’s left to former Justice John Paul Stevens to say it for them. Even if all eight justices were to agree that between being unable to take any cases for next term, and being unable to decide major cases this term, things are not getting done at the court. And even if the GOP intransigence today, and the likely refusal of Democrats to ever confirm a Republican, means that the court is someday reduced to Elena Kagan alone, typing out unsigned opinions from under a bar someplace, nobody is ever going to ask for help. All-seeing oracles? They don’t need it.
Unlike the White House, or Senate Republicans, the U.S. Supreme Court has no weapons in the war over the confirmation of a ninth member. That’s a political fight, not a legal one. The justices rarely weigh in overtly on Capitol Hill battles and when they do, it always, always hurts the court. Any action it takes that suggests ideological partisanship will hurt the institution. But, ironically enough, the pretense that the institution isn’t broken also hurts the institution. And so the current court careens between 4–4 splits, unanimous narrow orders, and variously styled ducks and punts, in an effort to communicate that it is serenely above partisan politics. It’s an unenviable position for a court: The more zealously it tries to signal that it can do its work shorthanded, the more credibility it lends to Sen. Chuck Grassley’s side of the debate. The court is inadvertently working toward its own diminution.
Which brings us to the tragicomedy we just witnessed with the Zubik decision. “The Court expresses no view on the merits of the cases,” it reads. “In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.” Hey, thanks, Court! The sad part of Zubik isn’t just the implication that the court is hard at work when it’s failing to resolve one of the most important challenges of the term. The sad part of Zubik is that the court’s charade makes it more and more likely that a powerless, ineffectual court starts to look normal.