Based on my observations in the Court yesterday, my sense is that there is a strong chance Zubik v. Burwell deadlocks 4-4. If that happens, the Justices may be inclined to reargue the case next term in the hopes that Chief Judge Garland is confirmed as Associate Justice Garland. But the Court may still be short-handed if that happens.
On May 20, 2015, the D.C. Circuit voted to deny rehearing en banc in Priests for Life v. HHS–one of the cases that was consolidated with Zubik. Judges Pillard, Rogers, and Wilkins wrote a statement concurring in the denial of rehearing en banc. Judges Brown and Kavanugh both would have granted the petition, and wrote dissentals. While there is no recorded vote from Judge Garland, at a minimum we know the petition was “before” him, and he did not vote to rehear. Presumably he reviewed the petition, and decided not to vote for rehearing.
Generally speaking, voting not to rehear a case is not worth much, but at a minimum, it suggests that Garland did not think the panel opinion was worthy of reconsideration. Taking a more solid position, Jay Wexler noted in a Washington Post from last week that Garland can be viewed as expressing a view on the panel opinion–that it was not wrong.
In May, Garland voted in the majority in the 6-to-3 Court of Appeals decision to deny an en banc hearing, which would have been heard by the whole court. That denial meant that the earlier decision, against Priests for Life, stood — for now. The Supreme Court will have its say soon.
“Priests for Life [is] of course an incredibly important case,” Wexler emailed, “but Garland didn’t write anything separately on it. He simply voted to deny rehearing en banc, which doesn’t say much of anything about his views on the case, other than that he didn’t think the panel opinion denying the Priests’ religious freedom claim was clearly wrong.”
Is voting to deny rehearing en banc, which is a reflection that the judge did not think the panel decision was wrong, possible grounds for recusal? I don’t know the answer, but this question occurred to me yesterday as I was thinking about each of the seven plaintiffs who were being represented before the Court, and the potential circuit split that would result.
Such an issue could not be cured by striking out the Priests for Life petition, as–the argument goes–Garland would have weighed in on the underlying legal issue, regardless of who the plaintiff is.
If Garland did have to recuse, then we could still be stuck with eight Justices.