President ties Supreme Court punt on Obamacare birth control case to Garland stalemate

HARI SREENIVASAN: It was a busy day at the Supreme Court. The justices weighed in on a handful of cases, including what was supposed to be one of this term's blockbusters: a dispute pitting religious freedom against mandate to cover contraception under the Affordable Care Act.

But the eight justices failed to offer a definitive decision, sending the case back down to lower federal courts.

President Obama addressed the decision, and speculated there might have been a different outcome if the vacancy left by the late Justice Scalia had been filled. He spoke with BuzzFeed News.

PRESIDENT BARACK OBAMA: Women will still continue to be able to get contraception if they are getting health insurance.

And we are properly accommodating religious institutions who have objections to contraception. I won't speculate as to why they punted, but my suspicion is, if we had nine Supreme Court justices, instead of eight, there might have been a different outcome.

HARI SREENIVASAN: We break down the short-handed court and its rulings today with chief Washington correspondent for "The National Law Journal" and "NewsHour" regular Marcia Coyle.

Marcia, we spoke about this when the justices seemed to ask for more information from everyone, trying to figure out a third way. So here was a decision without really a decision.

MARCIA COYLE, The National Law Journal: Well, actually, that third way was sort of an opening for the court.

Right after oral arguments, when it looked like the court was going to divide 4-4, they issued a special order telling the parties, the government and the nonprofit employers, to brief their own suggested compromise, a compromise offered by the court itself.

Well, when the brief came back, Hari, it really didn't look like there was a lot of room for compromise there. But there was enough there that the court, in its opinion today, which was an unsigned opinion read by the chief justice from the bench, the court said, look, it looks as though there's been movement on both sides here. Let's give the parties the opportunity in the lower courts to develop it before we, as the Supreme Court, would get involved in it.

And that's what they did. They said specifically they wouldn't decide whether the government's plan in practice now to accommodate religious objections substantially burdened these employers' exercise of religion or whether the government had a compelling interest here or was choosing the least restrictive means to achieve that interest, which is the test under the federal Religious Freedom Restoration Act.

So, they vacated the lower court decisions in the seven cases that they had before them, and then they also had an additional six cases that were awaiting the outcome in today's decision. They vacated the lower court rulings in those cases, overwhelmingly had been in favor of the government.

And, basically, those federal appellate courts will be starting now from scratch to see if there really is an opening for a compromise here.

HARI SREENIVASAN: So, if you're starting over from scratch, doesn't that mean that they could come either back to the same conclusion or, if you have got a number of courts, perhaps there will be a disagreement and then this — the merits of the case come back in front of the Supreme Court?

MARCIA COYLE: Absolutely.

If either side is unhappy with the result, they can come back to the Supreme Court. In fact, there was a separate concurrence by Justice Sotomayor joined by Justice Ginsburg in which they said, the court is not ruling on the merits here, so if the lower courts end up reaching the same legal results they did before, that's what happens, and then the next step will follow.

But they also said that the nonprofit employers' suggestion that there should be contraceptive-only insurance policies was not workable. Those policies did not exist, according to the government, and would not provide the seamless health insurance coverage that Congress intended under the act.

So they sort — those two justices, at least, have drawn a line in terms of what they might accept.

HARI SREENIVASAN: All right, let's talk of the second case that kind of came out today was, again, another non-decision to kick it down.

Spokeo, this was the online search engine and the type of results someone could get and whether, I guess, they have standing or not to sue for it.


Spokeo, as you said, is an Internet search engine. And it had put up online certain information about a man named Tom Robins. And that information was largely incorrect. And he claimed that that injured him in a number of ways, including his job prospects.

He was looking for a new job at the time. Credit information was wrong about him. So, he sued, saying that Spokeo's procedural violations under the federal Credit — Fair Credit Reporting Act harmed him.


MARCIA COYLE: And the question before the court was basically, can just saying that a violation of that act alone give you the legal right or standing to sue?

And the court today sent the case back to the lower federal appellate courts, saying, basically, what you said here is, you only did half the analysis for standing. You found that there was a particularized injury to Mr. Robins, but the other half is, it has to be a concrete injury.

And so Spokeo will now get another chance at defending itself. The standard is clear and tightened. On the other hand, the court gave something to Mr. Robins, saying that some injuries aren't tangible, they can be intangible, and you can use that under this act.

So, it was probably not a very satisfying decision to either side. And big business had watched this case closely, because it felt that it's too easy to sue under the Fair Credit Reporting Act, another act, at least three other federal laws involving consumers, and they were hoping for a definitive answer today.

HARI SREENIVASAN: Does this narrow then the scope of which — what is the sort of threshold where somebody could bring a lawsuit? Is that a win for big business?

MARCIA COYLE: It tightens it up a little bit, but it's a narrow decision, and I think it's a narrow decision because the court, again, is striving to find consensus in these cases, since it's missing a ninth justice.

HARI SREENIVASAN: Let's talk a bit about this. Are we seeing a pattern of 4-4 decisions here that would be different, as the president said, if there was a fifth justice — or a ninth justice?

MARCIA COYLE: Well, I think, Hari, we're seeing more of those decisions without a ninth justice.

Clearly, the court is struggling to reach some kind of a consensus and trying to avoid those 4-4 splits. The court has already decided the big union case involving fair share fees by non-union members paid to public employee unions. There, they divided 4-4.

They divided 4-4 in an Equal Opportunity Act case earlier in the term. And just last week, in a death penalty case, the justices split 4-4 on a request by Alabama to block a lower federal appellate court's order temporarily delaying the execution of an Alabama death row inmate.

We are going to have to wait now, I think, Hari, to see how the court resolves the remaining cases. There are still a few very big cases with very difficult issues facing them.

HARI SREENIVASAN: Marcia Coyle, thanks.

MARCIA COYLE: My pleasure, Hari.