Zubik V. Burwell: The Supreme Court As Mediator?

Faegre Baker Daniels partners Charles F. Webber and Jane Dall Wilson wrote a piece for Law360 on the U.S. Supreme Court’s recent decision on Zubik v. Burwell, which focused on religiously affiliated employers that petitioned to opt out of providing contraceptives as a part of their health coverage. After returning all seven cases to their respective districts, the Supreme Court came to an agreement with petitioners to agree on adaptations to a regulation of the Affordable Care Act for religious affiliated organizations.

“The real story in Zubik is that the court acted in the role of a mediator, not as a court seeking to resolve a concrete legal dispute presented to it,” the authors said. “The court actively sought a middle ground, appeared to find one that both parties could live with, then sent the case back to the lower courts with instructions to ‘allow the parties sufficient time to resolve any outstanding issues between them.’ This Supreme-Court-as-mediator is extremely unusual—if not unprecedented.”