Nuns from the Little Sisters of the Poor speak outside the Supreme Court following oral arguments in cases dealing with religious organizations that want to ban contraceptives from their health-insurance policies. Photograph by SAUL LOEB / AFP / Getty

This week, the Supreme Court began to look even more like the rest of the American political landscape. It was already an institution influenced and divided by ideology—perhaps it always has been one. But, with a seat left empty by the death, last month, of Justice Antonin Scalia, and with the Republicans in the Senate refusing to consider anyone to fill it, there are indications of other tendencies taking root, too. Like Congress, the Court may be not only splitting but fracturing into ineffectuality. Rationality may yet prevail, but, given the way that the Presidential race is going, it’s worth taking a moment to look at some judicial worst-case scenarios. For example, the only thing worse than a partisan Court may be one in which partisan fights find no national resolution.

A small harbinger of the Court’s possible future came in Friedrichs v. California Teachers Association, a case, decided this week, that asked whether public-employee unions could require people who didn’t want to join a union, but who nonetheless benefitted from its activities, to pay an “agency fee” in lieu of membership dues. The Court of Appeals for the Ninth Circuit ruled for the unions. Prior to Scalia’s death, observers figured that the union would likely lose 5–4 when the case moved to the Supreme Court. In the event, without Scalia, the vote was 4–4. When the Supreme Court ties, the lower-court ruling generally stands (although there are circumstances in which the judge might ask for a case to be argued again). And so the union won. Adam Liptak, of the Times, called the result "the starkest illustration yet” of how Scalia’s death “has blocked the power of the court’s four remaining conservatives to move the law to the right.” That’s true, and, in this case, for people who care about collective bargaining, that block provided a victory. But, if the lower court’s ruling had been different, the implications of the tied vote would have been different as well, and, in one of the other close cases this term, that may be what happens.

More than that, when the Supreme Court ties, it’s not as though the lower court becomes its fully empowered proxy. Often enough, it's almost as if no one has decided, at least not definitively. A tie that lets the ruling under appeal stand does not have the force of precedent, and it does not necessarily have any force outside the particular circuit in question. This can get confusing. For example, the birth-control case that the Court is hearing now, Zubik v. Burwell, consolidates six different lawsuits. In the best-known of them, the Little Sisters of the Poor have argued that requiring them to do anything that would lead to the women they employ (aides in the nursing homes that they run, for example) getting birth-control coverage through their insurance plans would be a violation of the Sisters’ religious freedom—even signing the Obama Administration’s opt-out form is something they deem offensive. The Sisters lost at the appeals level, as did all the other similarly minded Zubik plaintiffs, and so a tie in the Supreme Court would be a loss for them and for anyone who felt the way they do in the Third, D.C., and Tenth Circuits, where those suits originated. But in a separate suit now making its way to the Court, from the Eighth Circuit, the judges ruled for plaintiffs raising the same objections as the Little Sisters. (This is known as a circuit split, and is one of the reasons that the Supreme Court may choose to hear a case.) A tie in Zubik would also leave that victory in place. And, if the Court tied again in the Eighth Circuit case, the law would, effectively, still mean different things in different parts of the country, despite two full hearings at the highest level. The Justices seem to be trying to avoid that by asking all sides to submit briefs on what might amount to a compromise—as an example, the Court suggested a system in which religiously minded employers would, in effect, not have to talk directly about things that they don’t like to people whose actions they don’t approve of.

Different Justices have different ideological bents, but so do different circuits. The Ninth Circuit has a reputation for being liberal, though it also has conservative members. The Fifth Circuit has some liberals, but is fairly conservative. One of its rulings, if allowed to stand in a tie, when the Court releases a decision on it later this term, will shut down a good number of the abortion clinics in Texas. (Scalia, of course, would have been for that anyway.) Some people, particularly those who favor states’ rights, might believe that Texas or Mississippi—or New York—should get to decide what it thinks about abortion, guns, same-sex marriage, or even voting rights, without asking what the rest of the country, or the Constitution, has to say about it. (Never mind that appellate judges aren't necessarily tribunes of democracy.) The Senate Republicans’ indifference to the crippling of the Court is, at the very least, consistent with the more extreme rhetoric of the small-government movement: maybe it's better when nothing works in Washington. Conceding to that view would also be an abandonment of a common project that the United States has been working on for a couple of centuries. The different parts of the country have, in a general sense, been speaking to one another less and less. But sometimes they have to, in front of the Supreme Court. Those conversations shouldn’t become empty.

Perhaps the Republicans’ stance is just a temporary fit of election-year madness, and the Party leadership will come around. So far, though, Mitch McConnell, the majority leader, and his colleagues have refused to even consider the nomination of Merrick Garland, the eminently respectable judge whose name President Obama has sent them. They may be damaging more than their own reputations, and perhaps even more than the veneer of nonpartisan judiciousness that the Court has. (Although it’s already worn thin.) They may be damaging the whole idea that there should be an institution that functions the way the Supreme Court has through the past decades. The constitutional tools that made Franklin D. Roosevelt’s court-packing scheme plausible, despite its eventual failure, are still theoretically available—the number of Justices is set by statute, and can change. Or maybe the Republican Senators are just waiting for President Trump, or Cruz, or the Congress that this strange election year or the next might bring in, or for more vacancies until the Court falls below its quorum of six, and nothing is decided. How low do they want it all to go?