On Wednesday, an eight-member Supreme Court heard a challenge to the requirement under Obamacare that employer health insurance plans cover birth control. The case was brought by nonprofit organizations with religious objections to contraception.
But questions from the bench suggested that the justices might be evenly split on whether the complicated arrangement worked out by the Obama administration to balance religious freedom and women’s health violates the nonprofits’ rights under existing law. If so, two outcomes are possible: The justices could hand down a 4-4 ruling that would not establish a binding precedent around the country, leaving the law open for interpretation. Or they could decide to have the case reargued next term in the hope that a successor to the late Justice Antonin Scalia will have been confirmed by the Senate.
Obama is in good company in sounding such an alarm. Last month, in remarks delivered before Scalia’s death, Chief Justice John G. Roberts Jr. lamented the politicization of the confirmation process.
Noting that Scalia and Justice Ruth Bader Ginsburg were confirmed by virtually unanimous votes in 1986 and 1993, respectively, Roberts said that in recent years the process had become much more partisan, with Democratic senators opposing Republican nominees and vice versa. “That suggests to me,” Roberts said, “that the process is being used for something other than ensuring the qualifications of the nominees.”
Based on his comments last month, it would seem that the chief justice agrees. He would be doing his court and the Constitution a favor by explicitly calling on the Senate to do its job and give Garland a fair hearing.