By Marcia Coyle, 5/16

The U.S. Supreme Court on Monday demonstrated that the “straight and narrow” may not be just the path to honest and moral behavior, but also a path to consensus on a bench struggling without a critical ninth vote.

In three of five opinions—Zubik v. Burwell, Spokeo v. Robins and Sheriff v. Gillie—the high court either punted the major legal questions to the lower courts or chose the question of least resistance to resolve.

That the high court was facing a challenging term following the Feb. 13 death of Justice Antonin Scalia became clear the following month when the justices split, 4-4, in Friedrichs v. California Teachers Association. The Friedrichs case, challenging agency-shop fees charged to nonunion workers by public employee unions, was one of the term’s highest-profile cases and one in which the union seemed likely to lose if Scalia had been on the bench.

The justices divided, 4-4, in an Equal Credit Opportunity Act case earlier in the term and in one of two issues raised in a state sovereign immunity case. And last week, the high court deadlocked on Alabama’s request to block a federal appeals court order delaying the execution of Vernon Madison.

The outcome in Zubik appeared destined to go the same route as Friedrichs. Oral arguments in March revealed an identical ideological divide among the justices. In Zubik, religious nonprofit employers challenged the Obama administration’s plan to accommodate their objections to providing contraceptive coverage in their health insurance plans.

Shortly after arguments, however, the high court issued an extraordinary order directing the parties to file new briefs on whether its own suggested compromise would resolve the case. The new briefs reflected some agreement on how to resolve the nonprofits’ challenge to filing a required notice of their objections to the coverage with the government.

But the parties still seemed far apart on how to implement any compromise while still providing contraceptive insurance seamlessly through health insurance plans.

The justices appeared to have seized that small opening in the new briefs as a way to send the cases back to the seven federal appellate courts from which they came. “Although there may still be areas of disagreement between the parties on issues of implementation, the importance of those areas of potential concern is uncertain, as is the necessity of this court’s involvement at this point to resolve them,” the court said in an unsigned per curiam opinion.

The justices declined to rule on the questions at the heart of those cases: whether the nonprofit employers’ religious exercise was substantially burdened by the government’s plan, whether the government had a compelling interest in requiring contraceptive coverage and whether it had chosen the least restrictive means of serving that interest.

“They are doing their best to avoid splitting 4-4, but at the same time they are demonstrating how they are having a hard time grappling with the important issues presented to them in these very big cases,” Elizabeth Wydra, head of the Constitutional Accountability Center, said.

Wydra said the justices’ action was really a “punt,” evidenced by the concurrence by Justice Sonia Sotomayor and joined by Justice Ruth Bader Ginsburg. “She noted the courts of appeals, after review, remain free to reach the same conclusions on the legal issues that they did before (overwhelmingly in favor of the government),” Wydra said. “I think today’s decision is much more about putting this off to another day.”

The Spokeo case, like Zubik, also may return to the Supreme Court.

The justices were asked whether the fact alone that Spokeo Inc., an Internet search engine, violated the Fair Credit Reporting Act gives challenger Thomas Robins a legal right, or standing, to sue.

A 6-2 majority vacated a ruling in favor of Robins and sent the case back to the U.S. Court of Appeals for the Ninth Circuit because its analysis of standing was “incomplete.” The circuit court, Justice Samuel Alito Jr. wrote, did not address whether the alleged procedural violations by Spokeo “entail a degree of risk sufficient to meet the concreteness requirement.” It only addressed the “particularized” injury part of the standing analysis, he wrote.

“This is not a groundbreaking decision,” said Reed Smith’s Michael O’Neil, adding that the justices did not go as far as the defense bar hoped. Numerous federal courts, he said, have stayed lawsuits brought under the credit reporting law and other federal statutes, pending the Spokeo decision.

“Today’s decision does not create a blanket result for those cases,” he said. Instead, the court must consider the specific harm alleged in those lawsuits and determine whether, regardless of what Congress has said, such harm is ‘concrete and particularized.’ ”

Wydra agreed, adding, “As these two important decisions demonstrate, the court continues to be hamstrung by the fact that it isn’t operating with a full complement of nine justices. In both cases decided today, the court’s action left the major questions presented—whether consumer protections allow injured consumers their day in court, and whether women can access contraception guaranteed under law despite their employers’ religious objections—for another day.”

The third decision—Sheriff v. Gillie—did not draw the same intense media and other attention as Zubik and Spokeo, but it fit a similar pattern.

The justices were asked two questions: whether private attorneys hired by state attorneys general to collect debts owed the state are exempt from the Fair Debt Collection Act under the act’s state-office exemption, and whether it was materially misleading under the act for them to use attorney general letterhead to inform people that they are collecting debts owned to the state.

A unanimous court, led by Justice Ruth Bader Ginsburg, chose not to answer the state-officer issue and assumed “arguendo” that they did not rank as state officers under the act. But the court answered the second question, finding that those lawyers’ use of the letterhead did not violate the act.

In reversing the Sixth Circuit, Ginsburg wrote, “Use of the Attorney General’s letterhead merely clarifies that the debt is owed to the state, and the Attorney General is the state’s debt collector.”