Center for American Progress

Justice Still Waits: The Nondecisions of an 8-Justice Supreme Court

Justice Still Waits: The Nondecisions of an 8-Justice Supreme Court

The judicial vacancy on the U.S. Supreme Court has dramatically hindered the Court’s ability to make meaningful decisions on key issues, and an obstructionist Senate is to blame.

Police stand outside the U.S. Supreme Court in Washington, D.C., on June 23, 2016. (AP/Evan Vucci)
Police stand outside the U.S. Supreme Court in Washington, D.C., on June 23, 2016. (AP/Evan Vucci)

Since Justice Antonin Scalia’s death in February 2016, the country has suffered at the hands of an obstructionist Senate that refuses to do its constitutional duty to offer advice and consent on filling the U.S. Supreme Court judicial vacancy. After senators initially threatened obstruction on anyone whom President Barack Obama nominates, the Center for American Progress released an issue brief that estimated that more than 100 million Americans could be affected by the lack of a ninth justice. CAP warned that if the threatened obstruction continues through two Supreme Court terms, it could damage the Court’s ability to rule on key issues.

But the nation did not have to wait until the 2016 term to see the impact of the Senate’s unprecedented obstruction. The vacancy has already damaged the Court’s status as the final arbiter of critical legal issues and constitutional questions that affect millions of lives.

In several cases, the Court deadlocked 4-4 or declined to rule on the merits, delaying an actual decision. A split vote results in an unsigned opinion that simply states, “The judgment is affirmed by an equally divided Court.” The lower court decision is then upheld by default, and no precedent is set; it is as if the Court never heard the case. Millions of Americans who depended on the Supreme Court for a final answer in the 2015 term now face a patchwork of constitutional rights based on where they live.

Millions left fearing the deportation of a loved one

The stakes were high in United States v. Texas, in which 26 states sued the federal government over the Obama administration’s executive actions to improve immigration enforcement by providing temporary protection from deportation for qualifying residents. The 5th U.S. Circuit Court of Appeals—one of the most conservative courts in America—blocked the programs from going into effect across the nation until the case is resolved, leaving millions of families in limbo.

Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, applies to the parents of lawful permanent residents or U.S. citizens. Expanded Deferred Action for Childhood Arrivals, or DACA, applies to unauthorized immigrants who have lived in the country for many years and came here as children. Those unauthorized immigrants who registered and clear background checks were able to request temporary protection from deportation and authorization to work.

Vacancy impact

On June 23, 2016, a shorthanded Supreme Court was unable to reach a decision—deadlocking 4-4. For now, the 5th Circuit’s decision to block DAPA and expanded DACA across the country is upheld by default. An estimated 4 million immigrants will remain vulnerable to deportation, and more than 6 million citizens will continue to live in fear for their loved ones. Furthermore, the Supreme Court’s indecision is costing the U.S. economy $29.9 million in gross domestic product, or GDP, each day the programs remain on hold, as these previously eligible immigrants are unable to work legally, earn higher wages, and make even greater contributions to the U.S. economy.

The deadlock is a stark reminder of how the Senate obstruction on the president’s nominee to the Supreme Court continues to directly affect millions of Americans, leaving lives and the law in a state of uncertainty. These immigration plans are common-sense policies that were blocked first by a politically motivated lawsuit and then by a do-nothing Senate, whose refusal to do its job has damaged the Court’s ability to make meaningful decisions.

The right to contraception for hundreds of thousands of women is up in the air

In an unsigned, unanimous opinion in May, the Court kicked Zubik v. Burwell back to the lower courts for further proceedings—without any ruling on the merits. Zubik consolidated seven lawsuits by religiously affiliated nonprofits objecting to the Affordable Care Act’s, or ACA’s, accommodation for the contraception coverage mandate. The ACA allows employers with a religious objection to contraceptives that have been approved by the Food and Drug Administration to submit a form or letter to the government stating their objection. A third-party insurer then pays for and administers the contraception coverage. And while the organizations neither fund nor administer the contraception coverage themselves, they claim that merely filling out a form substantially burdens their religious liberty.

Eight federal circuit courts dismissed these suits and ruled in favor of the federal government. Only one federal appeals court—the 8th Circuit—ruled for the religious employers. Zubik is a follow-up to the Court’s 2014 decision in Hobby Lobby v. Burwell, which extended the ACA’s accommodation for nonprofits to closely held corporations with religious objections.

Vacancy impact

When the Court declined to rule in Zubik, it essentially allowed one regional appellate court to create legal confusion and unequal access to birth control for women in different states. More than 750,000 Americans work for Catholic hospitals alone, and women who work for religious nonprofits within the 8th Circuit—in Arkansas, Iowa, Minnesota, Missouri, Nebraska, and the Dakotas—were depending on the Court for a final answer on whether they have the same rights under the ACA as women in the rest of the country. Instead, hundreds of thousands of women and their families must keep waiting for justice.

A man’s life barely spared

Thirty years ago, Vernon Madison was convicted of murdering an Alabama police officer. A jury recommended a life sentence, but the judge overrode this recommendation and instead sentenced the defendant to death. Still on death row, Madison’s lawyers are arguing that dementia and strokes have rendered him mentally incompetent for execution and that he cannot understand his execution or remember the crime. In May 2016, the 11th Circuit stayed Madison’s execution and set a date for reviewing his case. Alabama appealed immediately to the Supreme Court, however, and asked that the execution continue as planned.

Vacancy impact

In a chilling reminder of how much is at stake, the Court split 4-4 on whether to stay Madison’s execution. Madison was scheduled to be executed at 6:00 P.M. CT on May 12, but the Court deliberated until 8:22 p.m. CT that night, when the justices finally deadlocked 4-4. The 11th Circuit’s stay was therefore upheld merely by default, and Madison lived that night. On June 23, the 11th Circuit heard oral arguments on Madison’s appeal. However, other death row inmates may not be so lucky.

Anti-worker activists continue assault on public unions

Despite 40 years of precedent, conservative activists in Friedrichs v. California Teachers Association challenged public-sector unions’ right to collect so-called fair share fees from nonmembers who nonetheless benefit from union representation. This attack on public workers was built on a 2014 decision, which held that unions representing “quasi-public” employees—such as home health care workers who are paid by the state—cannot require nonunion workers to pay fair share fees. The Court split 4-4, upholding by default a lower court decision that upheld public unions’ ability to collect fair share fees.

Vacancy impact

Although the deadlock is good news for workers, anti-worker activists will continue to sue unions in an effort to diminish workers’ rights. A victory that does not set a new precedent is hardly a solid victory. Meanwhile, the economic security of more than 7 million workers and their families hangs in the balance.

Tribal courts in 31 states left uncertain of their authority

It took the Court six-and-a-half months to announce a deadlock in Dollar General Corporation v. Mississippi Band of Choctaw Indians, postponing a decision that is critical for Native Americans on tribal land.

Tribal sovereignty is at the heart of Dollar General, in which the company challenged the right of tribal courts to hear suits against nontribal businesses operating on tribal grounds. In this case, a 13-year-old tribal member was working at Dollar General on tribal land when he claimed he was sexually assaulted by a nonmember employee. The boy’s family sued the company in tribal court, but Dollar General argued that the court lacked the authority to rule, given the company’s nontribal status. The 5th Circuit disagreed, ruling that the suit should go forward in tribal court.

Vacancy impact

The deadlock leaves a core question of tribal sovereignty and tribal court authority unanswered. Legal uncertainty will continue to plague tribal courts, which operate in 31 states across 326 federally recognized reservations. This uncertainty could hinder the ability of tribal members to seek justice in their courts.

Consumers’ rights harmed by Court that declined to make a meaningful decision

As in Zubik, the Court declined to rule on the merits in Spokeo Inc. v. Robins. Thomas Robins sued Spokeo—a “people search engine” that aggregates data on individuals—for publishing inaccurate information about him online. Robins claimed the information was disseminated while he was unemployed, thus injuring his employment opportunities. The Court was asked whether Robins had standing to sue. The 9th Circuit ruled that Robins had shown the kind of direct injury that allowed him to sue Spokeo under federal law.

Vacancy impact

In a 6-2 opinion, the Court punted the case back to the lower court, asking it to reconsider the standing issue. In dissent, Justice Ruth Bader Ginsburg argued for a decision on the merits. She wrote that Robins’ claims of an injury were enough to “carry him across the threshold.” It is unclear how the standing issue will play out in lower courts. Many argue that the confusion benefits businesses and could leave many consumers without the tools necessary to hold companies accountable for wrongdoing.


An eight-member Supreme Court that is unable to rule on key issues undermines the rule of law. After nearly five months, the Senate’s inaction has now had a dramatic impact on the country. When the Court cannot decide critical constitutional and statutory issues, the nation must lay the blame where it belongs: on a Senate that refuses to do its job.

The Constitution establishes the judiciary as the one branch of government designed to be as removed from politics as possible. The Court’s role in the nation’s democracy includes faithfully interpreting the Constitution, protecting individual rights from the whims of a political majority, and ensuring the rule of law by creating legal consistency and predictability across the country.

Obstructionist senators, however, would rather use the Court as a political chip. July 19, 2016, will mark 125 days since President Obama nominated Chief Judge Merrick Garland. The following day—while the Senate is in recess—will constitute a new and unfortunate record in American history: the longest amount of time that has ever passed for a Supreme Court nominee to reach a floor vote in the Senate. As the summer presses on, people across the country must turn up the heat on senators, calling on the Senate to do its job so that the Supreme Court can do its job too.

Abby Bar-Lev Wiley is a Policy Analyst for the Legal Progress team at the Center for American Progress.

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Abby Bar-Lev Wiley

Policy Analyst