RENEE MONTAGNE, HOST:
The U.S. Supreme Court has decided not to decide a major case, a case challenging a federal law mandating birth control coverage in employee health plans. That decision is the latest example of a closely divided eight-justice court struggling to deal with a vacant ninth seat. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: The Obama health care overhaul includes a provision that requires all employee insurance plans to include coverage for cost-free birth control. Religious nonprofits like universities, hospitals and charities are permitted to opt out by notifying either the government or their insurer of their religious objection. The insurer or the third-party manager then arranges separate birth control coverage.
That accommodation was not enough for some religious nonprofits. They challenged it in court, contending that by being required to notify the government or the insurer that they were opting out that they were triggering separate birth control coverage. Eight out of 9 appeals courts rejected that argument, and the nonprofits appealed to the Supreme Court, which was expected to resolve the issue this term. That, however, was before Justice Antonin Scalia died, leaving a vacant ninth seat and little to no prospect that the Republican-dominated Senate would vote anytime soon on the president's nomination of Merrick Garland to fill the vacancy.
At the oral argument in March shortly after Scalia's death, the justices looked as though they might deadlock 4 to 4. In less than a week, though, they took the rare step of floating a compromise solution. And yesterday, the court, in an unsigned unanimous opinion, booted the case back down to the lower courts with instructions to take sufficient time for the two sides to resolve their differences.
The reality of the vacant seat has begun to set in. Since Scalia's death in February, there have been three deadlocked votes in cases that had been argued, plus another tie vote last week to stay an execution. Apparently anxious to avoid more ties, the court seems willing to be creative, as it was yesterday. Indeed it went out of its way yesterday to say that it was deciding nothing.
Since February, the court has also ruled in the narrowest way possible in some cases, avoiding resolution of any larger question. And it's accepted fewer cases than usual for review next term, focusing its attention on some numbingly-dull questions. After all, unless Merrick Garland were to be confirmed in the lame-duck session of Congress after the election, it's unlikely that any new president's nominee would be sworn in until the spring of 2017, too late to participate in most of the work of the court next term. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.