With the death of Justice Scalia on February 13, the Supreme Court has been thrown off-balance. Prior to Justice Scalia’s death, the Court was composed of four conservative judges, four liberal judges, and Justice Anthony Kennedy, who functioned as a swing vote. Now with Justice Scalia’s seat vacant, the liberal judges may have an advantage until a replacement is nominated by the President and confirmed by Congress.
President Obama has nominated two of the Justices that currently serve on the Court—Justices Elena Kagan and Sonia Sotomayor—and clearly signaled that he intends to nominate a third. The President stated: “I plan to fulfill my constitutional responsibilities to nominate a successor in due time. There will be plenty of time for me to do so, and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote.”
However, the Senate Majority Leader, Mitch McConnell, countered that the Senate would not confirm a nomination by President Obama and that the task of selecting a nominee should go to the next President. Eleven senators of the Senate Judiciary Committee agreed, writing that the Committee will “withhold consent on any nominee to the Supreme Court submitted by this President” and “will not hold hearings on any Supreme Court nominee until after our next President is sworn in on January 20, 2017.”
The Supreme Court’s terms stretch from mid-fall to mid-summer, with a break from hearing cases and delivering opinions in July, August and September. If a replacement for Justice Scalia isn’t confirmed until after Inauguration Day, the Court will remain unbalanced for the remainder of its current term and the first half of its next term. This dynamic would affect the Court’s selection of which cases to hear as well as the results of those cases.
This issue directly touches plan sponsors, because several cases before the Court this term deal with employee benefits and related issues. Earlier this term, the Court ruled in Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan that health plans have to act quickly to enforce the ERISA subrogation right to recover the cost of treatment of injuries from plan participants who obtain a settlement from the third party responsible for those injuries. The upcoming Freidrichs v. California Teachers Association deals with mandatory union contributions for public employees, while Zubik v. Burwell is a combination of seven separate challenges to the Affordable Care Act’s mandate that group health plans cover contraceptives. The Court has not yet decided whether to hear several other cases related to health care, such as Tibbs v. Bunnell, Doe v. Christie, and Home Care Association of America v. Weil.