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  1. Opinion

Editorial: Another case for filling U.S. Supreme Court vacancy

Judge Merrick Garland
Published May 17, 2016

The U.S. Supreme Court found a way to buy time and potentially appease both sides in the debate over birth control with a ruling Monday asking the lower courts to fashion a legal compromise involving requirements of the Affordable Care Act. But the court is not a mediator charged with encouraging consensus. It is supposed to be the final word, and it took this convenient opt-out to avoid a 4-4 deadlock. Once again, the stubborn refusal by Senate Republicans to act on the president's nominee to fill the court's vacancy is undermining the court's rule and delaying justice.

The eight-member court, in an unsigned opinion, punted on the central question of whether an accommodation involving the Affordable Care Act unduly and unconstitutionally forces some religious groups to help provide contraception coverage to their employees, which these groups oppose on moral grounds. Under the accommodation, these groups are free from providing coverage and any liability for fines if they inform their insurer or the government that they want an exemption. Insurers or the government would then pay for the coverage instead.

The accommodation is a reasonable effort to address a narrow but symbolically important issue, all while protecting the larger goal of insuring more Americans, making policies more equitable and ensuring everyone has equal access to contraception. Still, some groups insisted the notice requirement made them complicit in conduct they view as at odds with their faith. Eight of nine appeals courts that heard the issue sided with the Obama administration. But in its opinion Monday, the court sidestepped any ruling on the merits of the case. Instead, the justices urged the lower courts to allow both sides "sufficient time to resolve any outstanding issues between them." In short, a court equally divided on ideological lines was not prepared to pick winners and losers.

Both sides, not surprisingly, welcomed the decision. It kept the accommodation in play in an election year while signaling that a course could be found for relieving these groups of any burden. While that may be a practical way to resolve the narrow issue in this case, the larger problem is a high court so paralyzed it cannot function as a final word on constitutional rights. Bumping these cases to the lower courts fosters a patchwork legal system, where rights are defined by the geography of individual judicial circuits. Since the death of conservative Justice Antonin Scalia in February, the court has deadlocked three times, leaving the nation without clarity in the law, the Supreme Court's very constitutional purpose.

Senate Republicans have made clear they do not intend to act on President Barack Obama's highly qualified nominee, federal appellate Judge Merrick Garland, currently chief judge of the D.C. circuit, arguing the next president should fill the vacancy. All parties before the court deserve a fully functioning bench, and justices need to be deciding cases, not engineering legal settlements. This court has a singular role, and it needs to fulfill it.

Senate Republicans need to get on with their jobs and take up the nomination. The vacancy is creating uncertainty across the judicial system. There is no just reason to delay the resolution of the serious cases that come before this court. One branch of the government is being held hostage by another, and it's time to return the balance of power to the democratic system.

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