The First Amendment and executive power are the major themes for this term’s remaining cases. Here is the run-down on the most important cases yet to be decided this term. Monday, June 23, is the Court’s next official decision day, with more decisions likely to be handed down later in the week.
Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corp. v. Sebelius
This case is the undisputed “big one” for this Supreme Court term. At issue is whether business owners may be forced by the government to provide birth control and abortifacient health benefits in violation of their religious beliefs. Religious freedom cases are often disturbing under any circumstances, but because this particular imposition by government arises in the context of Obamacare, executive branch power, corporate rights, and women’s rights it has become a lighting rod for lies and mischaracterization.
It is a dicey business predicting Supreme Court outcomes from oral argument, but this one looks like a good bet for a 5-4 decision, with Justice Anthony Kennedy once again casting the deciding vote. In 1993, Congress enacted the Religious Freedom Restoration Act (“RFRA”) to protect the free exercise of all Americans, with no heavier burden placed on business owners than on anyone else. Whether RFRA survives in any meaningful form for business owners after Hobby Lobby and Conestoga Wood will shape how government may impose on religious Americans for years to come. That the particular imposition in this case comes from an executive branch agency in the form of regulation and not even as a result of open debate and deliberation by Congress is doubly disturbing.
National Labor Relations Board v. Noel Canning
Update (6/26/2014): In a rejection of President Obama (PDF), the Court held that presidents lack the constitutional authority to declare the Senate to be in recess, and therefore make recess appointments, while it is holding pro forma sessions.
Whereas Hobby Lobby and Conestoga Wood keep the question of legislative versus executive branch power largely behind the scenes, Noel Canning brings it front and center. The issue is whether the president or the Senate gets to decide when the Senate is in recess. If the president gets to decide, then his appointments to the NLRB while the Senate was holding only “pro forma” sessions, were valid. If the Senate gets to decide whether it is, or is not, operating, then President Obama’s appointments, which were made to the NLRB (and to the Consumer Financial Protection Bureau), were invalid and much of the work of the board over the past few years is a nullity.
The Senate and the White House have struggled with this issue for decades, but President Obama, a former senator, was the first to outright disregard the Senate’s long-established process and simply declare his authority to make recess appointments whenever he chooses. In the past, a “customary” practice of determining whether the Senate was recessed was generally respected by presidents and no court was needed to resolve the issue. It was President Obama’s unprecedented power-grab at the Senate’s expense that caused the Supreme Court to step in here.
Harris v. Quinn
The fate of public employee unions hangs on this unlikely case out of Illinois. Home health aides in Illinois, despite the fact that they are actually employed by the individuals they work for, are designated by law to be “State employees.” They are thus subject to the rules governing unionization of public employees, and one of those rules requires nonmembers to pay “fair share” dues to a union. The nonmembers object to the mandatory fair share payments because they do not support the union’s activities, which means this is yet another case with lurking First Amendment consequences.
In 1977, the Supreme Court held that mandatory fair share payments for public employee unions were constitutional so long as the payments are used for non-ideological union activities related to collective-bargaining representation. The idea that money compelled in such a manner does not aid the ideological activity of a union is, of course, a ridiculous fiction. Money is fungible; every dollar raised from nonmembers for non-ideological union activities frees another dollar from members that the union may devote to ideological, often partisan election, activities. Although it was by no means made clear at oral argument that the high Court will embrace the opportunity, it could end this preposterous imposition on nonmembers of public employee unions. If it did, it would greatly reduce union clout, both in collective bargaining with government officials and in the partisan elections of the very politicians who appoint such officials.
McCullen v. Coakley
Update (6/26/2014): In a decision authored by the Chief Justice (PDF), the Court held that Massachusetts’ law restricting speech on public sidewalks and streets within 35 feet of an abortion clinic violates the First Amendment.
This case from Massachusetts presents the question of how and to what degree First Amendment activities may be curtailed on public sidewalks near abortion clinics. The composition of the Court is quite different than it was during its last venture into balancing speech rights with the right to seek an abortion. In 2000, Justice Stevens upheld an expansive Colorado abortion clinic buffer zone, with Chief Justice Rehnquist, and Justices O’Connor, Ginsburg, Breyer, and Souter joining. Rehnquist and O’Connor have now been succeeded by Chief Justice Roberts and Justice Alito, who may see speech-free zones differently, particularly because the present case more directly raises the question of whether the restrictions were actually targeted at pro-life speakers and not justified by a vague concern to provide access and prevent violence.
The usual caveat of making predictions based on oral argument applies here, but it does not seem likely that a majority exists to uphold Massachusetts’ buffer zone law. Intimidation, harassment, and violence outside abortion clinics are already illegal, so it will be interesting to see if the justices decide to let some speech-free zones exist (even if Massachusetts’ law went too far) or entirely sweep away the concept.
Susan B. Anthony List v. Driehaus
The rights of pro-life advocates and other political activists who engage in First Amendment activities is at issue in this case arising out of Ohio. Ohio law makes it unlawful to make “false and misleading statements” during an election campaign. In 2010, then-Congressman Steven Driehaus accused Susan B. Anthony List (“SBA List”) of planning to run false advertising against him. SBA List contended that Driehaus had supported taxpayer funded abortion when he voted for Obamacare and planned to put up billboards to that effect. Intimidated by Driehaus’ complaint, the billboards never went up because the billboard company rebuffed SBA List after Driehaus’ lawyers threatened to sue. Driehaus eventually lost his election anyway and dismissed his complaint against SBA List. SBA List, however, still wants the Ohio law struck down as a violation of the freedoms protected by the First Amendment. The question before the high Court is whether SBA List still has standing to challenge the Ohio law.
This may be the rare case where the conservative wing of the Supreme Court, which generally does not endorse speculative claims for standing, agrees with the liberal wing that “somebody should be able to get into federal court,” as Justice Kagan put it during argument. Even the lawyer for the state of Ohio agreed that the law in question presented serious constitutional concerns. If the justices to hold that SBA List has standing to sue, expect the issue of whether states may prohibit allegedly false speech in election campaigns to be back at the high Court in the next year or so.
Update (6/16/2014): In a unanimous decision (PDF) written by Justice Thomas, the Court held that SBA List has standing to challenge the Ohio election speech ban.
Other Still-Pending Cases
A few other cases deserve a quick note. The Fourth Amendment and the privacy of cell phones is at issue in Riley v. California and United States v. Wurie. For decades, police departments have been operating under the rule that they can search a cell phone that was on a person who had been arrested without having to seek a warrant for the search. Given the recent public revelations about NSA phone metadata seizures, it might be worthwhile to keep an eye on what the Supreme Court has to say about cell phone privacy.
Another technology-related case still pending this term is American Broadcasting Companies v. Aereo. Aereo provides DVR-like and on-demand television service quite a bit more cheaply than the cable companies by copying the over-the-air broadcasts of content producers and transmitting them to subscribers via the internet. The company built this business model to fit within an exception to the copyright laws the courts carved out decades before internet delivered-content was possible. Whether or not the high Court lets it continue (my money is on not), expect Congress to stamp out the fledgling service and any others like it.
There is a large group of cases in which various organizations and the State of Texas are suing over whether the Environmental Protection Agency exceeded its authority when it issued greenhouse gas emissions standards for motor vehicles under a permitting scheme designed for stationary sources of pollution. The outcome of these cases is of slight interest because a whole bunch of cases involving executive agency authority to interpret statutes and issue regulations—including more challenges to the EPA, and lawsuits against DHS, HHS, and the IRS—are working their way through the lower courts right now. It is deep in the weeds, but court watchers have spent the past term examining the Supreme Court’s treatment of statutory interpretation.
Finally, I would be remiss if I did not mention Abramski v. United States. The Supreme Court will have to decide whether so-called straw purchases were criminalized by Congress, at least where such purchases involve only individuals who are otherwise lawful buyers. The statute is not a picture of clarity—in fact it is not obviously aimed at straw purchasers at all—making this the other important still-pending statutory interpretation case.
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