Supreme Court in Transition: What Happens to the ACA Case?

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On Saturday, February 13, 2016, United States Supreme Court Justice Antonin Scalia, the longest serving justice on the Supreme Court, died in his sleep while on a hunting trip in Texas. One of the big questions now is what happens to the cases currently before the Court, especially those cases that were largely expected to be decided 5-4 while Justice Scalia was alive.

Among those high profile cases is another one on the Affordable Care Act (ACA), Geneva College v. Sylvia Burwell, Secretary of Health and Human Services, et al.. This case centers on whether regulations outlining a process for religious not-for-profits to claim exemptions from contraception requirements under the ACA violate the First Amendment and the Religious Freedom Restoration Act. The Supreme Court granted certiorari on November 6, 2015 and oral arguments are scheduled for Wednesday, March 23, 2016.  The case is before the court due to a circuit split (in this case, seven circuit courts of appeal including the 3rd and 10th Circuits upheld the regulations while the 8th Circuit held the process was substantially burdensome).

With Justice Scalia no longer on the court, the balance is largely seen as 4-4. Absent the speedy confirmation of a new justice, which appears unlikely in the current political environment, there are a number of possibilities as to how this case (and those other cases) could turn out, including:

  • The court could split 4-4 in which case the decision of the lower courts are affirmed. The Geneva College case is actually one of seven cases consolidated for oral argument from different circuits across the country. This would only have the effect of extending the current circuit split on this issue. Religious not-for-profits would follow any applicable rulings from the Circuit Court in the jurisdiction where they are located. However, given the circuit split and the high-profile nature of these cases, this would be a temporary situation. Once a new justice is seated, the court would likely re-hear these cases either next term or even possibly the term after depending on when the justice is actually seated;
  • The court could reach a decision. The court decided the first two ACA cases with interesting alignments of the justices. The first ACA case, NIFIB v. Sebelius, had a 5-4 decision in 2012 with Chief Justice Roberts joining the four justices in the liberal wing voting to uphold the law. The court decided the second case, King v. Burwell, in a 6-3 decision in 2015 with Chief Justice Roberts and Justice Kennedy joining the majority opinion. If these cases are any indication, there is precedent that this case could be decided this term; or
  • In line with the second possibility, Chief Justice Roberts might urge the justices to rally around a decision that most or all of the justices could at least tolerate. The death of longstanding colleague has a way of bringing people together. Furthermore, Chief Justice Roberts has long signaled his desire to have fewer 5-4 decision and have a more united court even if that means issuing narrowly tailored decisions. While this has not always succeeded, especially on very controversial cases, Justice Scalia’s death could push the court in this direction at least for the remainder of this term.

The Supreme Court resumes oral arguments on Monday, February 22, 2016.