Tuesday, May 17, 2016
by Margaret Drew
On Monday, the Supreme Court decided Zubik v. Burwell by not deciding. The court remanded the consolidated cases to their various intermediary courts. The Court suggested that the lower courts, all but one of which upheld the government mandate providing access to birth control even for those employed by religious organizations, might find that the parties are able to reach solutions that protect women's access to birth control in ways that do not infringe on religious rights. Thoughtful analyses have been written on this per curium decision, such as those noted on SCOTUSBlog.
My reflection focuses on process, rather than substance. While the Court suggests that in any settlement, women's right to birth control access must be protected, the court does not provide specific guidance on how the parties will reach settlement. The court has taken an approach more commonly found in trial courts. Encouraging settlement or engagement in ADR processes is common, if not required, in trial courts. Some appellate courts also recommend or demand settlement discussions prior to scheduling cases for argument.
In a time when angry philosophical divides inhibit discussion of finding common ground, the Court has effectively designed a plan for the parties to accommodate each other's concerns while preserving constitutional protections. The Court did so by first requiring the parties to submit written plans on what settlement might look like. Presumably the exercise informed the court on whether the parties could approach solution. This week's decision remands the cases with the knowledge that settlement is possible because the parties have already designed accommodating plans through their Court submissions.
More importantly, the court has shifted focus from divisiveness to compromise. Historically, this is the art of politics -- an art that has been rejected of late. Beyond finding resolution of the case in controversy, the Court is providing guidance to the public as well as to other government branches on how to find meaningful resolution. The Zubik controversy is an emotional one. The stakes are high for women as well as for religious employers. If common solutions can be found in this case, there is no reason why compromise should be rejected as a means of resolution in most political disputes. Even if the parties cannot accommodate the separate interests, the attempt is significant. The Justices may be best suited as leaders and teachers in demonstrating how reasoned collaboration protects interests while promoting cooperation. Indeed, the Court employed this process in reaching its per curium decision, modeling the art of reasoned cooperation.