Litigants fear short-handed Supreme Court might skip case

Litigants fear short-handed Supreme Court might skip case
© Greg Nash

Home healthcare companies are worried the eight-member Supreme Court won't consider a case on whether workers are eligible for overtime pay. 

Many think the eight justices would split 4-4 on the case, which would leave a lower ruling in place that makes home healthcare workers eligible for overtime pay.

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The court has already delayed its consideration of the case twice. Its next conference to consider new cases is Friday, but it has yet to put the case on its list for review.

“The first time was on Good Friday, so it could have been a scheduling issue, but if it gets delayed again we’d probably start thinking, ‘Do we have a shot?’” Home Care Association of American Executive Director Phil Bongiorno told The Hill.

The home healthcare case is just the last sign of possible difficulties at the short-handed court.

The ninth seat on the Supreme Court has been vacant since Justice Antonin Scalia's death in February, and a replacement is unlikely any time soon given the stalemate in the Senate over President Obama's nominee. 

While speaking at the New York University School of Law last week, Justice Elena Kagan reportedly said the court is “really working hard” to avoid deadlocked decisions. She credited Chief Justice John Roberts for helping the court reach consensuses.

The court, however, has been deadlocked twice — first in March in a case over whether a wife can be held financially responsible for the failure of her husband's real estate endeavor and a second in a case earlier this month over whether public sector unions should be required to pay their fair share of union fees.

And in the controversial case challenging ObamaCare’s birth control mandate, the court asked for more information from both sides on “whether or how” employees of religious nonprofits could get their contraceptives covered in a way that’s more agreeable to their employers. 

Experts say the delay in review of Home Care Association of America v. Weil could be another signal that the justices are having a harder time than they’re letting on.

“It’s a matter of reading tea leaves, but that’s a reasonable calculation,” said Russell Wheeler, a visiting fellow at the Brookings Institution. “It’s not the first time people have wondered why a cert petition hasn’t been acted on as quickly as they thought it would be.”

Wheeler said the justices might be asking themselves if they should go to all the trouble of hearing oral arguments if the case will end in a 4-4 tie.

“They must be asking themselves how much of our energy are we just going to waste and how much energy of the parties are we going to waste,” he said. “In a 4-4 tie, it’s as if the decision never occurred. It’s as if they never took the case. They must be looking at that and feeling a little frustrated.”

Wheeler doesn’t see an end to those frustrations anytime soon.

If the Senate holds out in its refusal to confirm Obama’s pick Merrick Garland and Democratic front-runner Hillary ClintonHillary Rodham ClintonTrump: 'Why no action' from Obama on Russian meddling? Trump notes 'election meddling by Russia' in tweet criticizing Obama Former Obama advisor calls Fox ‘state sanctioned media’ MORE gets elected, he predicts Republicans will again refuse to confirm a nominee.

“If the GOP wins and tries to fill the seat that they wouldn’t let Obama fill, you can be sure that’s going to be a knock down drag out battle,” he said. “They may be looking at this for over a year.”

Lacking a ninth member hasn’t kept the court from operating.

Earlier this month, the justices unanimously upheld the one-person, one-vote principle in a case challenging how legislative districts were drawn in Texas.

In another unanimous ruling that same day, they said sex offenders are not required to update their sex offender registry when they move out of the country.

In the labor case, the Paraprofessional Healthcare Institute is hoping the court's consensus is to reject Home Care Association's appeal.

“I’d say even when there were nine justices that was absolutely our hope,” said Abby Marquand, director of policy research for the home care worker advocacy group. “Workers have been granted federal minimum wage and overtime protection. It would be pretty unfavorable to essentially take those rights away now.”

If Scalia were still on the court, opponents of the rule say he would have likely voted to strike it down.

Adam Prizio, manager of Government Affairs at the Center for Disability Rights Inc., said Scalia would not have supported an unfunded mandate.

“The majority of home attendants are paid by Medicaid, so this rulemaking imposes additional costs on the states without any sort of allocation or appropriations,” he said. “As a result of the rule, states are behaving in predictable ways — they're imposing limits on people's ability to get overtime.”

Capping workers at 40 hours, Prizio said, requires people with disabilities to hire additional attendants or go without care.

“I think Scalia would have been one of the justices to want to tackle this issue,” he said.