by William P. Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law
*This post is part of the ACSblog symposium: Members of the ACS Board of Academic Advisors reflect on the 2015-2016 Supreme Court Term.
Who knew that the United States Supreme Court considered itself a forum for alternative dispute resolution? In what may have been the most high-level effort ever to broker the settlement of a case, eight Supreme Court Justices essentially told the parties in Zubik v. Burwell and six other cases to work out their differences among themselves.
Never mind that the issue in Zubik had been deeply contested in numerous cases around the country; never mind that the Court had heard 90-minute oral arguments on the matter; and never mind that the Court had already attempted to encourage settlement by taking the unusual step of ordering supplemental briefing about how the rights of the challengers could be accommodated. The Court was still not ready to decide whether requiring entities, objecting on religious grounds, to providing notice in order to receive an exemption from the Affordable Care Act’s contraception coverage requirements violated the Religious Freedom Restoration Act.
Of course, the Court’s unusual disposition [non-disposition?] in Zubik and its companion cases is readily understood as a product of a deadlocked eight-person court. After all, oral arguments in the case had foreshadowed that neither side had the necessary votes for an all-out win. Moreover, unlike other 4-4 cases, the Court could not simply affirm the judgment of the lower court because, in this instance, there were multiple lower court decisions that had reached differing results. So unless it was going to hold the cases over for reargument, the Court had to take some action. Remand, with the instruction that “the parties . . . should be afforded an opportunity to arrive at an approach going forward,” was the path it chose.