Zubik v. Burwell decided
|Topics:||Federalism & Separation of Powers|
According to a statement from Prof. Richard W. Garnett, today's "per curiam" opinion from the Supreme Court in the contraception-mandate case can be seen as "both a reset and a pause." "On the one hand," Garnett noted, "the decision wipes away, or 'vacates,' the several lower-court opinions that had ruled against the religious challengers on the basis of arguments that would, if followed in other contexts, have undermined the protections for religious liberty provided by federal law. The Court's move doesn't end the argument, but it does undo some unfortunate precedents."
"The decision can also be seen as a pause, or a delaying tactic," he added, "until either the Senate or the election -- or both -- provide some clarity about who will replace Justice Scalia on the Court. "It seems reasonable to conclude," he noted, "that if Justice Scalia were still on the bench, a majority would have ruled in favor of the Little Sisters of the Poor and the other challengers. The government's admissions in oral argument and in the supplemental briefs appear to have made it possible for the justices to avoid a confusing and inefficient 4-4 tie and for all 8 to agree on this intermediate step. It remains to be seen whether the administration will modify the mandate so as to end the litigation."