The Supreme Court’s Empty Seat and 2015–16 Term

Supreme Court building

Photo credit: Supreme Court HDR by MitchellShapiroPhotography. Flickr. Creative Commons Attribution-NonCommercial-NoDerivs 2.0 Gen.

August 04, 2016

This summer, the U.S. Supreme Court decided several landmark cases that will impact the rights of women and girls across the country for years to come. But the term will be remembered for the unexpected death of Justice Antonin Scalia, who passed away in February in the middle of the 2015–16 term. Because the U.S. Senate has so far refused to consider President Obama’s nominee to fill Scalia’s seat, the court was forced to make most of its major decisions with only eight justices.

Without the ninth justice, the court risks deadlocked four-four decisions. Typically, in a fully-staffed court, it takes a five-justice majority to issue a ruling, and that ruling becomes law for the entire country. In the case of a four-four tie, the decision of the lower court stands. But if the court has taken a case in order to resolve conflicting decisions—if, for example, the 5th and 8th Circuits disagreed over the interpretation of a federal law and ruled differently in similar cases—then a four-four tie means that federal law is different in different parts of the country.

The Supreme Court is the final arbiter of the most complicated and controversial federal laws. The ongoing risk of four-four ties undermines the court’s ability to fulfill that essential duty. Courts matter, and we need the Supreme Court to be fully functioning. If you haven’t already, join AAUW members across the country and sign our petition urging the Senate to consider President Obama’s nominee.

So what did the eight-judge court decide this summer? Three huge decisions from this term will profoundly affect gender equity. (If you want to know even more, listen to the recording of our term wrap-up call.)

Contraceptive Access Still Threatened

Following the disastrous Hobby Lobby decision, women’s access to contraceptive care was again under threat this year. When the Affordable Care Act regulations were created, the government built in an accommodation for religious nonprofits that objected to contraception on religious grounds. The accommodation allowed the nonprofits to avoid paying for their employees’ contraceptive care simply by notifying insurers or the government of objections. While most nonprofits accepted the accommodation, a small group argued that the accommodation didn’t go far enough to protect their religious beliefs. Because the circuit courts disagreed over whether the accommodation was sufficient, the Supreme Court agreed to hear several of the cases, consolidated under the case name Zubik v. Burwell.

Given the impact of Hobby Lobby and the implications this decision could have, Zubik was one of the most anticipated cases of the term. But in the end, the decision only created more confusion. The court issued a per curiam opinion—an opinion that speaks for the court but doesn’t identify an author—and sent all of the cases back to the lower courts for reconsideration. The court made no decisions on any of the legal questions and certainly not on the overarching question of whether the accommodation sufficiently protected religious liberty. And since there are multiple lower courts that will have to reconsider the cases, the Supreme Court’s decision not only delays any resolution of the issues but also creates more possibility for confusion and competing interpretations of federal law.

Affirmative Action Carries the Day

Fisher v. University of Texas at Austin was the court’s first race-conscious admissions case since 2003. After several rounds of appeals, the high court finally heard arguments this term. In Fisher, a white student sued the University of Texas, claiming that the university’s admissions policy violated her rights by taking race into account.

Thankfully, the court adhered to its earlier decisions and reaffirmed the constitutionality of race-conscious admissions. Writing for the four-justice majority, Justice Anthony Kennedy emphasized the university’s efforts to ensure that its admissions program was aimed at achieving diversity and providing fair opportunity without unfairly advantaging any students. AAUW joined an amicus brief urging the court to uphold the policy.

Reproductive Rights Vindicated

It was the court’s decision in Whole Woman’s Health v. Hellerstedt that will have the most profound effects on the rights of women and girls across the country. In Whole Woman’s Health, the court clearly and unambiguously affirmed the constitutional right of all women to make decisions about their health, family, and future without needless barriers.

In the last few years, a number of states across the country have passed so-called TRAP (targeted regulation of abortion providers) laws in an attempt to restrict and even eliminate women’s access to legal abortion. TRAP laws are designed to prevent doctors from being able to perform abortions. They are typically passed under the guise of protecting women’s health, even though the provisions generally do nothing to increase the standard of care. Hellerstedt challenged two TRAP law provisions in Texas, one that required all doctors providing abortion care to have admitting privileges at a local hospital and one that required all clinics providing abortion care to meet the same standards as ambulatory surgical centers.

The court soundly rejected both TRAP provisions and emphasized that Texas had not offered any medical evidence in support of either requirement—in other words, no evidence that either provision did anything to protect women’s health. In fact, medical evidence showed that the requirements did nothing to make patients safer. And the court also emphasized that the burden on abortion access was severe—allowing the two requirements to remain in place would have closed the majority of clinics in Texas.

We can all celebrate the victory of Whole Woman’s Health. But with a vacancy on the court, we don’t know what the next term holds. Sign our petition to urge the Senate to consider President Obama’s nominee now.



Supreme Court of the United States, 2010

Filling the U.S. Supreme Court Vacancy

AAUW members can play an important role in informing the public about the constitutional process for filling vacancies.


Courts Matter

Get informed about the judicial selection process in your state and the judicial candidates on the ballot before you head to the polls.

A woman smiling in front of the Supreme Court holding a marriage equality flag

A Term of Victories

Victories on a range of issues made the 2015 term particularly significant for supporters of equality.

By:   |   August 04, 2016


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  33. Anne Wolfe says:

    It was understandable for the sake of The Affordable Care Act to compromise and allow non-profits to give health insurance that doesn’t pay for abortions when if differs from their values. The importance of getting health care to millions of persons and saving lives weighs heavy. Some day I would like to see that women have a right to an abortion – period. –as a matter between her conscience and her doctor. How much better it would be if the decision were purely medical and such morals were trained and deliberated in society, not crudely enforced by law – is that utopia? Plus, I fear that having an alternative that means resorting to grand socialized medicine and all the problems that go along with it – just look at VA healthcare’s troubles – in order to fill the gaps would be an anti-solution. What works in a small European county might not work in a massive society like ours. Whether that should be worked out as a constitutional amendment, as laws, or by the Supreme Court – well – non of those would necessarily be permanent. Society must work out what it believes. People must be educated about religion, science, medicine, human beings, and then make up their minds – however they choose – but with knowledge and enlightenment, not fear.

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