« Jurisdiction day at the Court | Main | Another data point on computers in the classroom »

Monday, May 16, 2016

Zubik, shadow dockets, and dispute resolution

It is easy to conclude that the anti-climactic resolution in Zubik v. Burwell is simply a consequence of the Court being down a Justice. What would have been a 5-4 win for the plaintiffs (with Justice Scalia in the majority) became a 4-4 affirmance (of disparate lower-court outcomes), necessitating the Court to order supplemental briefing and then to remand when, in light of that supplemental briefing, it was no longer necessary for this Court, as opposed to a lower court, to be involved.

And all of that may be true. But I want to try to situate this case, given its actual resolution, in two broader concerns.

First is the connection to William Baude's Shadow Docket. Perhaps this case demonstrates how cases can move back and forth between the "real" docket, in which merits decisions are made and explanations given, and the shadow docket, in which reasons are not given, but hints are dropped and cases are knocked out of the Court for non-merits reasons. The Court functionally DIGed the case, but in a way that gave specific marching orders to the lower courts to start over and, hopefully, put together the compromise resolution that the parties suggested in the supplemental briefing. But the end result plays much like what we saw in the lead-up to Obergefell.

Second, this type of resolution is not necessarily a bad thing. District courts (as do courts of appeals, although not quite as often) do this all the time--it is an aspect of "managerial judging," especially in cases involving institutional reform. While the Court is partially tasked with resolving significant disputes over constitutional (and in this case statutory) meaning and application, it also is the top of a judicial system whose primary function is to resolve discrete disputes between discrete parties. And if the Court can do that with a "work-it-out" mandate without passing on the legal question, there is no structural reason--no reason grounded in the "purposes" of SCOTUS or the federal courts--for it not to do so. Especially if it provides a solution that protects everyone's rights.

Posted by Howard Wasserman on May 16, 2016 at 12:48 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Hard not accept the point about "managerial judging," especially taking into account the imperative to avoid making avoidable constitutional determinations. It is notable that the persiflage about "hijacking" insurance plans that marred the oral arguments finds no place in the cold type of the written remand order. In nearly all circuits, plaintiffs-appellants face the strong likelihood that a failure to compromise will lead only to renewed findings of "no substantial burden." The proposed compromise envisioned by the Court's earlier supplemental briefing order leaves the sophistic "hijacking" argument nakedly exposed, and, except in the rare case of a self-insuring enterprise, utterly unpersuasive.

Posted by: MEHerlihy | May 17, 2016 5:03:05 PM

The effort on some level seems not worth the candle. Just 4-4 it!

Posted by: Joe | May 17, 2016 11:22:07 AM

Brian: The parties adopted two incompatible interpretations of the Court's proposal, and each said their interpretation would be acceptable and the other side's wouldn't. The basic differences that have divided them throughout the litigation continue to divide them. The Court is imagining common ground where none exists.

Posted by: JHW | May 17, 2016 11:05:08 AM

@JHW: I was under the impression both Parties agreed there was grounds for compromise/resolution. That certainly seems to be the view the court took.

Posted by: Brian | May 17, 2016 10:57:00 AM

Is that what happened here, though? In all the decisions the Supreme Court was reviewing, the challengers lost because the lower court held that there was no substantial burden. (There was a decision going the other way from the Eighth Circuit, but I don't think any cert petition arising out of that decision has been granted--I imagine it's been held for resolution of this case.) There has been no intervening development of law (the Supreme Court expressly declined to say anything at all about any of the legal issues in the case) and no intervening development in the facts that is relevant to the issue the lower courts resolved (at most, what happened in the supplemental briefing impacts the least-restrictive-means part of the analysis, but the challengers lost below on the threshold issue of substantial burden).

At least on the substantial burden question, then--which, again, is the actual issue the lower courts decided--these cases stood yesterday in exactly the same position they were in when the cert petitions were granted. And the difference now is only the formal one that the lower courts will just need to re-rule in the same way they did before--especially if they reasonably think a ninth justice sympathetic to their view of the case will be appointed by the next time it reaches the Court. The only way this outcome changes anything is in the event that the parties can actually resolve this issue on their own. And given the supplemental briefing, it's fairly clear that they will not.

Posted by: JHW | May 17, 2016 8:34:33 AM

The comments to this entry are closed.