Shut Down, No Shut Down, SCOTUS Won’t Shut Down


Whether the federal government is shut down or not, on Oct. 7 the Supreme Court will begin its 2013 term. Its work is “essential,” although much of its staff will be off work like the rest of D.C. If the past is any indicator, this upcoming term is likely to result in a number of 5-4 decisions along ideological grounds, with Justice Kennedy often being the critical vote. The 2013 term may be hardpressed to match the excitement or media flurry of last June’s blockbuster decisions on same-sex marriage and voting rights, but this term may be even more significant in such areas as the First Amendment, race and discrimination, and presidential and Congressional power.

2013_united_states_supreme_court_justices_print-rf14cbe9a4c584148a13e3ce71aad42c7_fegej_8byvr_512The Court typically reviews approximately 75 cases a year. It has already agreed to hear 44 cases and there are 25 cases set for oral argument this fall. The following are a sampling of a few that will be making headlines. Early predictions are not any indication of my own hoped-for outcome, just realism in light of the Court’s makeup:

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McCutcheon v. Federal Election Commission: Political campaign contribution limits are under attack again. This case raises the issue of whether a limit on how much an individual can contribute to a political campaign constitutes a violation of free speech. Current campaign finance laws include limits on individual contributions to candidates, political action committees and party committees (known as base limits) as well as aggregate limits on the total contributions an individual can make to all candidate and non-candidate committees. Shaun McCutcheon, an Alabama businessman, and the Republican National Committee are challenging the constitutionality of the Bipartisan Campaign Reform Act’s aggregate limits during a two-year election cycle.

In Buckley v. Valeo, the Supreme Court, while striking down candidate spending limits, upheld contribution limits and aggregate contribution ceilings. But since Buckley, America’s campaign finance laws have drastically changed, especially as a result of the Citizen’s United decision which led to $1 billion in new political spending in 2012. McCutcheon has the potential to basically bring down the entire edifice of campaign finance regulation.

Early Prediction: The oral arguments will help handicap this case’s decision, but at this point I predict a narrow 5-4 decision doing away with aggregate limits but leaving individual campaign contribution limits intact. However, those who are concerned with the influence of money on our nation’s politics should be very concerned, indeed. McCutcheon will be decided before the 2014 elections, and if limits go away, expect money to have even a greater voice than it already has. v. Coakley. This case brings a new twist to the abortion debate. Massachusetts enacted a law prohibiting people from entering a 35-foot zone around abortion clinics unless they are entering the clinic, using a public sidewalk to reach a destination other than the clinic or are clinic employees acting within the scope of their employment. In the case of Hill v. Colorado the Court decided that a law prohibiting anyone from entering an area next to a health care facility, to engage another person in conversation without permission, was constitutional because the law didn’t draw lines based on the content of what was spoken or who said it. The buffer zone applied to everyone and therefore was permissible. Since the law in Massachusetts allows employees of the clinic to approach people in the buffer zone, the plaintiffs claim it is “a content-based distinction that allows pro-choice speech but not anti-abortion speech,” and therefore is unconstitutional.

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Early Prediction: This case gives the Supreme Court the chance to revisit Hill v. Colorado and could be a precursor to a revisit of Roe v. Wade, so it will receive lots of attention. By a narrow margin this law will be upheld as a reasonable restraint on speech, but a one-person shift could lead to an opinion that opens the door to intrusive protests at abortion clinics.

Town of Greece v. Galloway. The practice of opening a legislative session with an invocation or prayer has been with us since Revolutionary War days. In 1983, in Marsh v. Chambers, the Supreme Court recognized that this practice does not violate the Establishment Clause of the First Amendment, so long as the prayer is not used to advance or disparage a particular faith. The town of Greece, New York opens its town board meetings with a prayer given by a citizen and encourages members of any faith to volunteer to give it. The town’s practice was challenged in court, and the U.S. Court of Appeals for the Second Circuit ruled that, based on the totality of circumstances (including the selection process and the sectarian nature of most of the prayers offered), a reasonable observer would believe the town endorsed a particular religion — Christianity. The endorsement test had been used in cases involving religious displays on government property (such as a cr√®che during the Christmas season), but not before in the legislative prayer context.

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Early Prediction: A broadly-worded decision for the city of Greece may further cloud the separation of church and state. I expect a real shift here from previous precedent in which the Court not only allows Greece to continue its practice, but I also see the Court opening up the possibility of more uses of prayer and religious practices in the political arena.

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Schuette v. Coalition to Defend Affirmative Action. The voters of Michigan passed Proposal 2 — an initiative amending the state constitution to prohibit the use of race as a factor in making decisions concerning public education, employment and contracting. The challengers argue that Proposal 2 creates a political obstruction to equal treatment. This case gives the Court the opportunity to address remaining questions about affirmative action after the Fisher v. Texas case was decided last June.

Early Prediction: I see this case and its almost unanimous decision closing the door to affirmative action. Fisher v. Texas came close, but this one will bring an era to an end.

Can Congress implement chemical weapons treaty?

Bond v. United States. After discovering that her best friend and husband were having an affair, Carol Anne Bond attempted to poison her friend by spreading chemicals on her mailbox, car door and front door. This resulted in a federal prosecution under the Chemical Weapons Act. Bond now disputes Congress’s power to implement the Chemical Weapons Convention Treaty by creating a law to enforce it. She argues that the federal government lacks a plenary police power and that Congress’s authority to pass treaty-implementing legislation should not be an end run around its enumerated powers. The government argues that the Court has never invalidated the implementation of a treaty and, further, maintains that the Chemical Weapons Act is a valid exercise of Congress’s power to regulate commerce.

Early Prediction: Besides putting at question Congress’s power to implement a treaty, this case has added significance in light of what has been happening in Syria these last few months. In this age of letting the federal government do what it wants when it comes to “terrorism,” there is no way the Court will invalidate this law.

National Labor Relations Board v. Noel Canning. Article II, section 2 of the U.S. Constitution provides that the President may “fill up all Vacancies that may happen during the Recess of the Senate.” Otherwise, the President must receive the advice and consent of the Senate for ambassadors, judges and higher-level executive officers. In January 2012, President Obama determined that the Senate was in recess and thus unavailable to confirm four nominees to the National Labor Relations Board (NLRB) and Consumer Financial Protection Bureau, so he appointed them pursuant to the Recess Appointments Clause. Yet, Canning argues it was not in “recess” since it had been conducting pro forma sessions every three days. One year later, the U.S. Court of Appeals for the D.C. Circuit struck down the “recess” appointments to the NLRB as unconstitutional. The federal government petitioned the Supreme Court for review, and the justices may finally decide what “recess” actually means — a debate Presidents and Congress have been having for decades.

Early Prediction: A little bit of trivia makes this case even more interesting. Earl Warren was a recess appointment to the Supreme Court by Dwight Eisenhower. He presided over the oral arguments in Brown v. Board of Education. His recess appointment wouldn’t have been valid under the theory of the D.C. Circuit. That said, I predict that the Supreme Court will dodge this “can of worms” since new appointees are now in place.

Those are only a few of the cases the Court has agreed to hear. One can never predict what additional cases the Supreme Court will agree to hear this term, but of those in the pipeline, the clear betting favorites to make it to the post in 2013 are as follows:

Can firms opt out of contraceptive mandate?

Contraceptive Mandate Litigation. In an effort to increase access to contraceptive services, the Department of Health and Human Services issued guidelines requiring employers to pay for contraception, sterilization, etc. and granted a narrow exemption for certain religious employers. Many employers — both religious and secular — argue that complying with the mandate would violate the tenets of their faith. Yet, failure to adhere to the law could result in huge fines. Nearly 70 lawsuits with more than 200 plaintiffs have been filed by religious organizations and other private employers to block the contraceptive mandate from going into effect, and two are poised to reach the Supreme Court. Following a favorable decision by the U.S. Court of Appeals for the Tenth Circuit, a federal district court granted a preliminary injunction to the chain Hobby Lobby because it had shown a likely violation of the Religious Freedom Restoration Act of 1993. Meanwhile, the U.S. Court of Appeals for the Third Circuit denied temporary relief in Conestoga Wood Specialties v. Sebelius, finding that for-profit, secular corporations cannot engage in religious exercise. On Sept. 19, the federal government asked the Supreme Court to review Hobby Lobby v. Sebelius. The same day, the attorneys for Conestoga Wood Specialties also petitioned the Court for review.

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Early Prediction: Chief Justice Roberts surprised everyone by being the swing vote to uphold the legality of Obamacare. He won’t do it again, and by a 5-4 vote the Court will allow companies to opt out of the contraceptive mandate.

fourthamendment500Warrantless Searches of Cell Phones. As technology advances, the Supreme Court is continually reevaluating the contours of the Fourth Amendment. The latest is whether a police officer may conduct a warrantless search of an arrestee’s cell phone. Typically, officers are permitted to conduct warrantless searches incident to arrest for the officers’ safety and the preservation of evidence. The federal appellate courts and state supreme courts are at odds on whether to treat cell phones like ordinary containers and allow police to review the digital contents without a warrant. The California Supreme Court indicated that cell phones should be treated like any other container, which may be searched incident to arrest. But the U.S. Court of Appeals for the First Circuit established a bright-line rule that cell phones may not be searched incident to arrest without a warrant due to the privacy interests at stake.

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Early Prediction: Petitions for a writ of certiorari have been filed in Riley v. California and United States v. Wurie, and given the disagreement among lower courts, the Supreme Court is likely to weigh in. Scalia is a big advocate of the Fourth Amendment and will lead the charge to prohibit the search and seizure of cell phones unless they pose an immediate danger. Good news if you are pulled over for running a stop sign, your texts will be safe from the prying eyes of the police. (But of course the NSA has them already.)

Each summer we hear lots of conversation about harmony and need for consensus in Supreme Court decisions. Chief Justice Roberts is at the forefront of this discussion, yet “his” Court still issues many landmark decisions on a partisan 5-4 basis. After working “together” for several years, I don’t see the dynamic changing. In fact, I see heads and hearts hardening and a Court more willing to overturn precedent if it suits its philosophical inclinations. Don’t be surprised if we don’t see one or two decisions that shift jurisprudence dramatically to the conservative camp. I hope I am wrong, but as they say, the judges are “at the post,” betting is closed; now it’s time to watch the race.