The public got its first taste of where an eight-member U.S. Supreme Court is headed on at least two controversial issues, and it only underscores the folly of leaving the late Justice Antonin Scalia's seat vacant for the next year. On Tuesday, the court produced a 4-4 tie on the issue of whether public unions can collect fees from non-members to finance collective bargaining and other services, leaving intact the labor practice by failing to overturn a 2014 lower-court ruling.
That was a big win for organized labor — perhaps more than it was a loss for the handful of non-union California teachers who advanced the lawsuit. Had the teachers prevailed, the clout of public sector unions would have been greatly diminished. Although unions still can't force non-members to subsidize their political activities, fiscal conservatives have long argued that government employee unions are by their nature political entities as they lobby for pay raises, pensions or other benefits that result in an expansion of government spending.
There's little doubt that Justice Scalia would have favored overturning the practice. He made clear his sympathies for the non-union teachers (and not for the danger of "free riders" in the collective bargaining process) during oral arguments in January. But this is far from the only issue where the court is likely to be split.
Also this week, the justices demonstrated that they are, as expected, struggling with the issue of contraception coverage mandated by the Affordable Care Act and how it might be applied to employees of non-profits affiliated with religions like Little Sisters of the Poor. The court issued an order directing the parties, who presented oral arguments just last week, to consider methods by which contraception coverage could be offered through insurers with even less involvement of the employers than the Obama administration already allows. Their briefs are due in mid-April.
In other words, the court would like to end up with a final version of the law where the employers are under no legal obligation to provide coverage and don't finance a dime of it but their employees end up with cost-free contraception anyway through a process that doesn't involve the employer whatsoever. Should such an extra-extra-accommodation be possible, that would seem like another nice victory for President Barack Obama and his expansion of health insurance coverage, not to mention a win for women of child-bearing years.
What's the obvious takeaway here? There's no longer a conservative majority on the U.S. Supreme Court, and Republican senators need to recognize that fact. Doing nothing about the vacancy for an entire year is not helping their cause. The president's nominee, Judge Merrick Garland of the U.S. Circuit Court of Appeals for the District of Columbia, may be the most conservative option that's ever going to be available to them to fill that vacancy, particularly if presidential politics continue to run their messy course.
Granted, there have been some signs of softening within the GOP ranks, particularly by senators up for reelection in so-called blue or purple states. More than a dozen Republican senators have indicated they'd been willing to meet with him, and now some are floating the possibility of a vote as well (Illinois Sen. Mark Kirk endorsed "rational, open-minded consideration" of the nominee after meeting with him Tuesday). Of course that doesn't include Senate Majority Leader Mitch McConnell, who has the final say concerning the Senate agenda and so far shows no interest in even chatting with the well-regarded jurist.
Yet Senator McConnell's stonewalling isn't playing so well with the general public. And that could be costly to a party already facing a "Donald Trump problem" and the possibility, voiced most recently by Maryland Rep. Steny Hoyer, that with the bellicose billionaire at the top of the ticket, Republicans might not just lose the White House, they could lose majorities in both the Senate and House (or at least it's fair to say a House turnover seems less far-fetched). Should that happen, GOP senators will wish they were facing a moderate nominee like Judge Garland instead of the certain-to-be-more-liberal choice of the next president.
Forget these phony-baloney arguments like the "Biden Rule" or other prevarications. Republicans are simply playing to that portion of their political base who not only want another Scalia on the court but believe the party isn't absolutist enough. Many GOP senators want to block Mr. Obama without having to acknowledge that his nominee is actually quite reasonable because, ultimately, they'd rather not vote against Judge Garland. That evasion might be helpful in some GOP primaries, but it could be deadly in November. Either way, it's a strategy that's counter-productive to the conservative cause, revealing the party to be both obstructionist and disinterested in the very issues — from union dues to contraception — that the slimmed-down court is ruling on right now and will continue to for another year.