An Important Supreme Court Update

Over the last couple weeks, I have sent you nine important cases currently before the Supreme Court.  Three of these cases were recently argued, including Wittman v. Personhuballah, which deals with the controversy over Virginia's Congressional District lines.  Please see below for an update based on these arguments and let me know what you think! 

Wittman V. Personhuballah

Late last month, Virginia got an embarrassing taste of what can happen when your Attorney General refuses to enforce the laws of the Commonwealth.  The Supreme Court heard argument in a case that will determine the boundaries of Virginia’s Third Congressional District, currently held by Democrat Bobby Scott. The Justices struggled to decide how states can get their electoral maps just right.  But the Supreme Court may not address that question at all, because several Justices doubted that anyone had a right to defend the Legislature once a lower court threw out the map. 

Normally, the Attorney General of Virginia defends the electoral map drawn by the General Assembly.  That is, of course, because of the basic proposition that our Attorney General is Virginia’s lawyer.  And that is his job.  But now Mark Herring is scuttling the General Assembly’s efforts in court.  If the Supreme Court holds that no one else has standing to defend that map, then Mark Herring will have ensured that the work of Virginia’s elected legislators is tossed to the curb.  

Justice Alito summed up the problem: If a state Attorney General decides “not to defend the legality of a redistricting plan that was adopted by the legislature, and that decision was made purely for partisan reasons,” then the Supreme Court may decide that even “a candidate who was severely adversely affected by that should not be able to challenge it.”  That’s what happens when your Attorney General elevates politics above duty.

The Supreme Court will announce its decision by late June.

Zubik v. Burwell  (Little Sisters of the Poor) 

On March 23rd, the Court held oral argument in Zubik v. Burwell.  After conferring two days later, and presumably taking a tentative vote, the Court did something very unusual.  It asked for further briefing in a way that appeared to propose a compromise between the parties.  The order can be found here

At argument, several Justices embraced the nuns’ view—also argued in my amicus brief—that the Government hijacks the nuns' benefits plan to provide contraception over their objection.  Even Justice Kennedy observed that the Government’s desire to make contraception access easy made it “necessary to hijack the plans.”
If the Justices tentatively voted the way they appeared to be leaning at argument, that would be a 4-4 split.  But in this case even more than others, a 4-4 split would cause a mess.  Courts of appeals have disagreed on this issue.  So if the Supreme Court cannot get 5 votes for any outcome, religious groups in some States will win, while those in other States lose.

The Court must want to avoid that fractured, nonsense result.  The Court has thus asked the parties whether a compromise is possible—that is, whether the Government can possibly provide contraceptive insurance coverage some other way, without hijacking the nuns’ plans.  If the parties persuade the Court that such a path exists, the Court may have 5 votes for an opinion that would require such a route be taken.
The additional briefing is expected in late April.
Friedrichs v. California Teachers Association 

On March 29th, the Court issued an order affirming by a tie vote of 4-4.  Many Court-watchers, including me, had predicted this unfortunate outcome.

Because of the 4-4 split, public employee unions in many States will continue to collect fees from teachers and others who do not wish to support or join the unions.  The law will essentially remain pro-union, as it has been since the 1970s.  But a major opportunity to vindicate teachers’ First Amendment rights has been missed.
Even the headlines about this case reflect the effect of Justice Scalia’s absence.  Both CNN and the New York Times called the Court’s tie vote a “victory” for unions.  The U.S. Secretary of Education, pleased with the result, said that “educators will continue to be able to focus on what is most important—helping students learn.”  Unfortunately, in many states, teachers will also have to focus on money being lifted from their paychecks to fund labor unions they specifically disagree with.