Courts must defer

We're seeing the effects of a Supreme Court with only 8 members. Is this what the GOP intends?

The first of two cases in the news is Zubik v. Burwell. This is a collection of seven cases in which religious non-profits say the government's method of opting out supplying insurance coverage for contraceptives violates their religious beliefs.

We'll clarify one detail right now. It isn't that the government's method of the employer notifying the gov't they find onerous. It's that their employees end up with contraceptive coverage. It is contraception they object to, not the ease or difficulty in telling the gov't they're not paying for it.

The Supremes issued a statement "from the court," not from a named list of justices, saying the individual cases must go back to lower courts. The justices make it clear this action isn't endorsing one view over another. The various parties are to try negotiating again. Even so, the Court is supplying the lower courts with a bit of guidance: The final result is the employees must have insurance that covers contraception. Given the paragraph above that could mean the cases aren't resolved until Scalia's replacement is on the bench.

The second case is United Student Aid Funds v. Bible. This doesn't refer to the Christian holy book, but to Bryana Bible.

There are two frequently cited historical cases that say (1) When a law is ambiguous courts should defer to they way executive branch agencies interpret the law (Chevron v. Natural Resources Defense Council written by John Paul Stevens), and (2) when an agency drafts regulations to interpret a law and the regulations are ambiguous courts should also defer to the agency unless the regulation plainly conflicts with the underlying law (Auer v. Robbins written by Scalia).

Stevens explained his reasoning: Justices are not experts in the field, agencies are. Agencies are also closer to elections (through the chief executive) than judges are.

Conservatives have been very much in favor of these two historical rulings – Scalia wrote one of them – but that changed when Obama moved into the White House. It has gotten to the point where Roberts and Alito (plus Scalia, while he was alive) were pleading please give us a case so that we can overturn these rulings.

Along comes such a case and the Supremes don't have the votes to overturn those rulings. So they declined the case, though Thomas objected to not taking it.

Why does this concern me? Because it means lower courts must still defer to the Departments of Education and Justice and their recent instructions on how to treat transgender students in schools.