Sunday, March 27, 2016

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.

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      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.

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