The U.S. Supreme Court often has the final say on America’s most important legal issues.
In 1973, the court ruled that women have a right to abortion. By 5–4 votes, the Supreme Court ruled that the federal health care law, known as Obamacare, is permitted by the Constitution in 2012 and the court ruled that same-sex couples can marry last June.
But on May 16, the court could not decide an issue it was asked to settle: Could the U.S. government require employers to provide workers with health insurance that pays for birth control?
That question had four judges on one side and four on the other.
With no majority, the Supreme Court asked lower courts to find a compromise. The case put the U.S. government against groups such as the Little Sisters of the Poor, which opposes birth control on religious grounds.
The tie vote has become the new normal for the Supreme Court, since the death in February of conservative Judge Antonin Scalia.
His death left the court’s remaining eight justices divided – with four generally taking the liberal side and four the conservative side.
Democratic President Barack Obama tried to replace Scalia.
But the U.S. Senate, controlled by Republicans, refused to vote on the nominee, Federal Judge Merrick Garland. Republicans want the next president, who they hope will be a Republican, to choose the next judge.
That means the Supreme Court will be down one judge for months to come. It likely means more tie votes.
“It does seem that short one judge, the Supreme Court will be punting on some important issues,” said Carl Tobias of the University of Richmond Law School. He used the American football term “punt,” which means giving up the football with hopes of scoring points later.
In addition to the birth control case, the Supreme Court also divided 4-4 in a labor case. The issue before the court was whether government employees could be required to support unions when they disagree with their positions.
And it happened again a few weeks ago when the court divided 4-4 on whether to lift a lower court order blocking Alabama from executing Vernon Madison.
Madison was found guilty of a 1985 murder, but his attorneys said his life should be spared because he has dementia.
When the Supreme Court cannot reach a majority decision, it allows lower court rulings to stand. So, for Madison, it means Alabama still cannot put him to death, based on a lower court ruling blocking his killing.
Based on his earlier decisions, Scalia, had he not died, would probably have voted with the four judges who wanted the death penalty to go forward.
In the union case, the tie vote also means that a lower court ruling stands. That ruling allowed unions to continue collecting money from all employees covered by union contracts.
Given his history on the Supreme Court, Scalia would probably have agreed with the four conservative justices. They said employees should not be required to support unions.
Divided court, divided country
Jonathan Turley is a law professor at George Washington University in Washington D.C. He said the divisions on the Supreme Court are similar to the divisions over politics and policies in Congress and among the American people.
“We are increasingly partisan,” Turley said, talking about the differences between Democrats and Republicans and liberals and conservatives.
Turley has a proposal to make the Supreme Court larger. He believes it will make the nomination process less divisive.
With the court divided evenly between conservative and liberal judges, the naming of a single judge could cause a major change in how the court decides cases, Turley said.
Appointments to the Supreme Court are for life – unless a judge decides to leave early – making each nomination even more important.
But if the court had more judges – Turley suggests 19 -- each nomination might not be as hard fought.
It would reduce the importance of individual judges and allow presidents to choose nominees with broader experience and ideas, Turley said.
It might also allow the court to hear more cases. Currently, the U.S. Supreme Court only takes about 80 of the 7,000 to 8,000 cases filed each year.
A larger Supreme Court would also follow the practice in other countries, such as Germany, Japan and the United Kingdom, Turley said. All have more judges on their top courts than the United States does.
Words in This Story
insurance – n. n agreement in which a person makes regular payments to a company and the company promises to pay money to cover medical expenses or other costs
birth control – n. things that are done to keep a woman from becoming pregnant
spare – v. to choose not to punish or harm
dementia – n. a mental illness that causes someone to be unable to think clearly or to understand what is real and what is not real
contract – n. a legal agreement between people and companies
partisan – adj. a person who strongly supports a particular leader, group, or cause