The New York Times editorial board slammed Senate Republicans’ ongoing obstruction of Merrick Garland’s nomination to the Supreme Court, explaining that the inability to resolve the Zubik v. Burwell case shows the harm in a court “without a full bench.”
On May 16, the Supreme Court handed down an unsigned per curiam opinion on the high-profile Zubik v. Burwell case, remanding the lawsuit back to a federal appeals court for further consideration of how religious accommodations are granted within the Affordable Care Act’s contraception mandate.
The New York Times editorial board pointed out that this type of opinion, which does not create Supreme Court precedent but instead allows for the potential to revisit similar cases in the future, illustrates the harm in Senate Republican’ ongoing obstruction of Merrick Garland’s confirmation to the Supreme Court. The Times’ editorial board lamented that opinions such as Zubik “leave millions of Americans waiting for justice or clarity as major legal questions are unresolved,” and concluded that “despite what Senate Republicans may say,” the Zubik punt showed that “the court cannot do its job without a full bench.”
From the May 16 editorial (emphasis added):
Every day that passes without a ninth justice undermines the Supreme Court’s ability to function, and leaves millions of Americans waiting for justice or clarity as major legal questions are unresolved.
On Monday, the eight-member court avoided issuing a ruling on one of this term’s biggest cases, Zubik v. Burwell, which challenges the Affordable Care Act’s requirement that employers’ health care plans cover the cost of birth control for their employees. In an unsigned opinion, the court sent the lawsuits back to the lower federal courts, with instructions to try to craft a compromise that would be acceptable to everyone.
This is the second time since Justice Antonin Scalia’s death in February that the court has failed to reach a decision in a high-profile case; in March, the court split 4 to 4 in a labor case involving the longstanding right of public-sector unions, which represent millions of American workers, to charge collective bargaining fees to nonmembers.
Unfortunately, the justices appear to be evenly split on this issue, as they may be on other significant cases pending before them.
The court’s job is not to propose complicated compromises for individual litigants; it is to provide the final word in interpreting the Constitution and the nation’s laws. Despite what Senate Republicans may say about the lack of harm in the delay in filling the vacancy, the court cannot do its job without a full bench.