Birth control and online info cases seem destined for future SCOTUS action after Monday’s opinions

The Supreme Court issued opinions in multiple notable cases on Monday. At least two of those, Zubik v. Burwell and Spokeo v. Robins, were eagerly anticipated, but likely proved somewhat disappointing to all parties involved, as neither opinion provided the decisive substantive answer to resolve the major questions at issue. These decisions make both cases seem destined to return to the SCOTUS at some point in the future.

In brief, Zubik is the case addressing religious accommodations and access to birth control for employees of religious nonprofits under the ACA. We discussed it in detail, here and SCOTUS Blog provides a wealth of great analysis. Spokeo is a case involving claims against the online data aggregator or "people search engine" under the Fair Credit Reporting Act for providing inaccurate information online about the respondent in the case. It is a class action. The issue before the court was whether the respondent could show that he was injured by the posting of incorrect information, giving him standing to bring the case. See SCOTUS Blog, again, for analysis and documents from this case.

It seems apparent that the even number of justices on the court likely shaped the unusual Zubik decision, which was a per curiam opinion that ultimately sent the case back to lower courts urging the parties to reach a compromise. In Spokeo, however, the Court provided a narrow decision with a 6-2 majority, so it is less clear what impact the courts' numbers had on this opinion.

The court handled Zubik v. Burwell in an unusual manner earlier in the case, requesting both sides to address whether they could reach a compromise. This prompted speculation that the court was deadlocked on the issues and curiosity about what the its next steps might be. Instead of ultimately ruling on the legal issues in the case on Monday, the court sent the various cases back to their respective courts to work toward compromise, in much the way a county trial court might urge parties to do, as Professor Margaret Drew astutely pointed out in this blog post. However, as Chad Flanders observed in a guest post on SCOTUS Blog, this case involves many parties in many different courts that would have to approve the compromise to prevent the case returning to the Supreme Court. This makes it likely the case will return, but perhaps there will be an odd number of justices on the court at that time, preventing a confusing "tie" vote or other unconventional action.

As for Spokeo, the court also returned the case to the lower court, but in this instance it was because it found that the appeals court had not made adequate findings on a point of law. The court held that the Ninth Circuit did not properly address the issue of whether the respondent's injuries were both "concrete and particularized." It did not rule on whether the respondent had standing because it did not have information about whether it was a concrete injury coming from the appeals court. This means the case will likely continue and potentially return to the SCOTUS, possibly when the court is at full capacity again.

Image via Wikimedia Commons.