David Hejmanowski: Supremely unusual methods


“We anticipate that the Courts of Appeals will allow sufficient time to resolve any outstanding issues between them.”

— Per curium decision

Zubik v. Burwell

“This is unorthodox, but arguably Solomonic.”

— Professor Michael McConnell

Stanford law school

Each Supreme Court term there are a handful of cases of that garner the most attention. They are generally related to topical political or social issues and are most often cases that will be decided by a close vote, which is what makes them so interesting. Those cases are usually among the very last decided by the court, usually at the end of June.

This term, one of the most closely watched cases was Zubik v. Burwell. If the name sounds familiar, it’s because the named defendant is Sylvia Mathews Burwell, the Secretary of Health and Human Services. She was the appellant in the Hobby Lobby case, and the connection is not a random one as Zubik is a follow-up to Hobby Lobby.

In Zubik and its companion cases, companies, religious orders, educational institutions and other organizations claim that the accommodations made following Hobby Lobby still violate their religious rights by requiring them to participate in the exemption process by which employees covered under their insurance obtain contraceptives.

Several federal appeals courts ruled against the plaintiffs in Zubik, finding that the accommodation was not a constitutional violation. The United States Supreme Court agreed to hear the appeal, and after they took the case, the 8th Circuit Court of Appeals issued a contradictory ruling, finding that the accommodation was a constitutional violation. This meant that there was a split among the districts.

Prior to the death of Associate Justin Antonin Scalia, most legal analysts suspected that the decision in Zubik would fall along the same lines as the decision in Hobby Lobby. If that happened, the ruling would have been 5-4 in favor of the plaintiffs and against the administration. Following the death of Justice Scalia, however, the same breakdown would mean a 4-4 tie among the eight remaining justices.

If the court issued written opinions but was split 4-4, it would mean that no decision had been entered and that the lower court decisions would stand. That would have left a situation in which the contraceptive accommodation was constitutional in most of the country, but unconstitutional in the Dakotas, Nebraska, Minnesota, Iowa, Missouri and Arkansas (the states that make up the 8th Circuit).

Not wanting to leave different citizens in different positions, nor to leave insurers in incredibly confusing territory, the U.S. Supreme Court did something that it rarely does — it took on the role of mediator. Instead of written opinions, the court issued a “supplementary briefing order” in which it suggested a potential compromise and asked the parties to brief the court on their legal positions.

In April, the parties filed their responses. On Monday of this week, the court took another extraordinary step, declining to rule on the issue and instead vacating all of the lower court decisions and sending the cases back to the lower federal courts to determine whether the solution the Supreme Court proposed can be satisfactorily implemented, noting that “both petitioners and the government now confirm that such an option is feasible.”

This type of resolution is not completely unheard of (in fact, the court cited three similar cases in the past) but it leaves the constitutional questions unresolved, perhaps to come back again another day. It is another example of the manner in which this term of the Supreme Court has been profoundly affected by the death of Justice Scalia.

The most closely watched case remaining in this term, Fisher v. University of Texas at Austin, a potentially landmark affirmative action case, has its own wrinkle. Because Justice Elena Kagan took part in the case in her previous role as Solicitor General of the United States, she has recused herself, meaning that only seven justices will decide the matter and that Scalia’s death actually removes the possibility of a tie in that case. Fisher was argued in December, and a decision is likely sometime in mid- to late June.


David Hejmanowski

Case Study

David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Common Pleas Court.

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