Here are a few thoughts on the Supreme Court vacancy as my kids are slowly quieting down for the night.
First, a 4-4 court from a liberal perspective is no worse than the current situation. Crappy decisions like the DACA decision out of the 5th Circuit will continue to be affirmed. However the affirmation will be on because the court can not come to a majority decision therefore the appeals court ruling holds only for that circuit and not for the nation. Questions coming out of liberal rulings in the appeals courts where the four liberal votes are voting to uphold and where there is a conservative swing vote (Kennedy or Roberts most likely) do not change in their outcome as the alignment would be a 5-3 or 6-2 ruling with a clear majority. The cases where Scalia would have been a member of a five person majority are the cases that are now being tossed back to the appeals courts as unresolved.
As of this year, most of the Appeals circuits including the DC circuit have a Democratic appointed judge majority. Cases which were granted cert from these circuits and would have been 5-4 reactionary judgments will be kicked back to the circuits. Those circuits will either have ruled with fairly liberal judges on the initial ruling or if the case was important enough and the randomly selected appeals panel was significantly out of line with the circuit consensus, en banc hearings would have final say.
If there is a long stretch of an 8 member court that can’t decide anything controversial, I predict that there will be a significantly higher number of en banc hearings conducting mini-reversals. The probability of a Supreme Court bench-slapping goes down dramatically.
Now onto healthcare. There are only two major healthcare cases on the docket right now. The first case is a technical discussion as to whether or not ERISA pre-emption regulations prohibit states from requiring self-insured companies from providing data to all payer claims databases. I don’t know if this was lining up to be a 5-4 decision nor what the configuration would have been. My preference is that the Supreme Court rules that all payer claims databases can require self-insured companies to submit data without running afoul of ERISA.
The other major healthcare case is the Little Sisters of the Poor et al. This is a birth control cases for religiously affiliated non-profits that think the mere act of signing a piece paper that states birth control is icky and the damn sluts should have the risk of pregnancy every time they spread their legs is an infringement on their rights under the Religious Freedom Restoration Act. This is a continuation of the line of logic that powered Hobby Lobby but it attacks the work-around that a third party administrator pays for birth control instead of the employer sponsor of the plan. This would have been a priori a 5-4 loss for PPACA and the notion that female reproductive autonomy is between a woman and her doctor. Now it is most likely a 4-4 case where the appeals courts have been slapping down the argument that the Little Sisters and others are making: signing a piece of paper is too much effort on their part.
As far as nominations, the only scenario where a nominee to the right of Atilla the Hun goes through is if by mid-May early polling and indicators show that the Democrats will most likely hold onto the White House and pick up at least four if not five or six Senate seats in November. At that point, the calculation could be that from a policy perspective, a Republican majority in the Senate could not get any better than having some say in a nominee instead of seeing a Democratic president nominate a choice constrained by Manchin instead of Grassley and a 51 or 53 vote Democratic Senate effectively say that if the Republicans want to run the Senate like Parliament, then by god they’ll get that.