Which legal arguments against OSHA's COVID-19 vaccination mandate are most likely to succeed?
The Supreme Court yesterday suggested a compromise solution to the contraceptive mandate for religiously oriented service organizations that object to contraception, and required the parties to comment on whether it met their needs. This order, made after oral argument, is very unusual. It likely reflects the fact that the Court was divided 4-4 on the question of whether the Obama’s administration previous accommodation violated the Religious Freedom Restoration Act.
Some initial responses suggest that the compromise might be welcomed by both sides. It should make us reconsider whether a Supreme Court with an equal number of justices is a bad development for the nation. A Court with nine justices would likely have come down on one side or another, embittering the side that lost in the culture wars. And when the culture war divide follows the partisan divide on the Supreme Court, the decision would only increase partisan distrust of the institution.
Greater efforts at compromise would be a hallmark of 4-4 court with such divides. Justices like to render decisions as matter of craft and institutional obligation and would tend to avoid deadlock, where possible. Of course, compromise is not always possible. But it is not even clear that more failures to render a binding precedent would be bad for the nation.
Such decision would typically have two kinds of results. In the most common kind of Supreme case—a case to resolve circuit court splits—it would leave disagreement among the circuits. To be sure, the tie vote would prevent the creation of a national rule, but in the case of a tie, there is often something to be said for both views below. Additional experience and arguments may help for a better resolution in the future.
Another kind of case that a 4-4 tie would affect is the overruling of Supreme Court precedent. But it is not at all clear as an institutional matter that it is wise to overrule precedents on a 5-4 vote. The closeness of the vote suggests that the precedent is not obviously to be discarded.
Finally, a 4-4 court prevents the possibility that a single swing justice will become the Court’s key decision maker. This kind of power is neither beneficial for the nation nor for the soul of that justice.
Now perhaps these arguments are not good enough to make the case for establishing a Supreme Court with an equal number of justices, although we had such a Court in the early republic. But they should make us more sanguine about periods in which vacancies create a Court with equal numbers.