Yesterday saw the U.S. high court delivering a split decision and desperately trying to avoid another. And yet their struggle falls on deaf ears.

It’s become cliche to point out that Senate Republicans are being obstinate in lieu of doing their jobs. The problem is our system is built to abide, or at least manage, that lag, and the justices have only said they’d “handle it.” And that’s what they appear to be doing—but the cracks are starting show in the system, and it’s looking more and more like Republicans will be the losers when it all breaks.

In the case of Freidrichs v. California Teachers Association, the court’s opinion yesterday was only a sentence long: “The judgment is affirmed by an equally divided court.” As such no national precedent is created, but the Ninth Circuit Court of Appeals’ decision is upheld, handing a victory to the the public sector unions, who sought to require public employees to be forced to pay fees to a union. Now teachers in California can be required to contribute to the cost of collective bargaining even when they disagree with the union’s demands. And though the decision does not have a nationwide precedent, it does leave in tact the nationwide status quo which allows teachers and government workers in 23 states and D.C. to pay-in to collective bargaining they may disagree with.

That’s not always the way it seemed it would go. During oral arguments in January the public sector unions’ fate seemed sealed, with the court’s conservatives rallying against them. But in the months since the arguments the makeup of the court has changed, and as The Guardian notes today’s decision underscores the cost of the Senate’s feet-dragging since Justice Scalia’s death last month:

Today’s decision, first of all, underscores the importance of the elections in November. There are many areas of the law where the difference between a swing vote on the supreme court appointed by Republican and Democratic president is huge. This case is a classic example. Virtually any justice nominated by a Democratic president would reject the argument that the first amendment forbids public sector agency shops, and almost any Republican-nominated judge would accept it.

…In addition, today’s case is about a broader political war. The Republican attack on public sector unions, in both state legislatures and the courts, is in large measure an attack on a major Democratic constituency. Making it more difficult for public sector workers to organize helps to produce self-perpetuating majorities at the state level, particularly combined with Republican vote suppression efforts. The at least temporary loss of the Republican supreme court majority, however, has made these efforts more difficult. And if the next median vote on the supreme court is selected by a Democratic president, the red tide at the state level might start to recede.

If that had been the only decision that would be one thing. But Tuesday also saw the justices released an order for more briefing in Zubik v. Burwell, the case argued last week dealing with contraceptive coverage under the Affordable Care Act.

Photo Credit: dog97209 cc
Photo Credit: dog97209 cc

“The parties are directed to file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees,” said the order, which even provided some examples the parties could consider.

The surprisingly detailed nature of the order make it hard to read as anything other than a last-ditch effort to avoid a split court, which observers thought likely after oral arguments in the case last Wednesday. Without the possibility of a tie it seems unlikely the court would call for more briefs without the possibility of a high-profile tie vote hanging over the court. Indeed, Justice Anthony Kennedy, seen as the swing vote of SCOTUS, seemed ready to side with his conservative benchmates, agreeing that the government was “hijacking” insurance plans to provide contraceptive coverage without thought to religious freedom.

The order represents a compromise: Find a solution and we can avoid this whole headache down the line. And that would be to the conservatives’ favor: If the call for briefs and compromise proves fruitless, then the half-dozen or so appeals court rulings in favor of the government would stand —something that conservatives in the court and Congress don’t want to see.

But so far the Senate refuses to issue a similar compromise. Reportedly a quarter of Republican senators are starting to favor the idea of holding meetings to nominate Merrick Garland, but apparently that’s not enough. If that continues to be the party line, it’s possible the Senate Republicans will find the Supreme Court getting “hijacked” out from underneath them, as more and more split decisions start to come down the pipeline.