Handicapping the End of the Supreme Court Term

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Why is this man smiling? Because he is John Roberts, Chief Justice of the U.S. Supreme Court.
Why is this man smiling? Because he is John Roberts, Chief Justice of the U.S. Supreme Court.
Why is this man smiling? Because he is John Roberts, Chief Justice of the U.S. Supreme Court.

If you were a fan of California Chrome, you probably thought this year’s Belmont Stakes was agonizing to watch and took forever. You may feel the same way about the current term of the U.S. Supreme Court, considering its rulings thus far. Chief Justice John Roberts gaveled his court to order on Oct. 7, 2013 and it’s now June and we’re still awaiting the results of several high-profile cases. Each is likely to be decided by a 5-4 vote split along ideological grounds, with Justice Anthony Kennedy continuing to be the critical vote. The legacy of the Roberts Court is quickly becoming defined by which way Kennedy leans. The 2013-14 term may be hard-pressed to match the excitement or media flurry of last June’s decisions on same-sex marriage and voting rights, but this term may be more significant in such areas as the First Amendment and Presidential and Congressional power.

The following decisions have already come down from on high and are likely precursors of what is to come in the last weeks of the Court’s term:

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Defender or destroyer of democracy? Shaun McCutcheon.
Defender or destroyer of democracy? Shaun McCutcheon.

McCutcheon v. Federal Election Commission was decided on Apr. 2, 2014. In this case, political campaign contribution limits were under attack and, by a 5-4 decision, the Court reaffirmed its commitment to deregulating political campaigns, thus allowing money to control the outcome of many races. Before this decision, campaign finance laws included 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. Alabama businessman Shaun McCutcheon and the Republican National Committee (RNC) challenged the constitutionality of the Bipartisan Campaign Reform Act’s aggregate limits during a two-year election cycle.

As I predicted last October, the Court’s 5-4 decision this April did away with aggregate limits, leaving individual campaign contribution limits intact only for the moment. Expect the next case the Court takes up to be a frontal attack on individual limits and, unless there is a major shift in the Court’s makeup, I expect individual limits to go the way of dinosaurs. Those concerned with money’s influence on our nation’s politics found little to cheer about in the Court’s decision.

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Greece is the word.
Greece is the word.

Town of Greece v. Galloway. The practice of opening a legislative session with an invocation or prayer has been with us since the Revolutionary War. In 1983’s Marsh v. Chambers, the Court ruled 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. The practice was challenged, 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.

Last October, I also predicted a broadly-worded decision for Greece that would further cloud the separation of church and state. The Court did exactly that, ruling 5-4 in an opinion by Kennedy not only to allow Greece to continue its practice, but to open up the possibility of the further use of prayer and religious practices in the political arena.

Schuette v. Coalition to Defend Affirmative Action. In 2006, the voters of Michigan passed Proposal 2—an initiative that amended the state constitution to prohibit the use of race as a factor in making decisions concerning public education, employment and contracting. The Coalition to Defend Affirmative Action brought suit, claiming that Proposal 2 created a significant political obstruction to equal treatment, which was obviously its intention. When the case made its way to the Court, it took the opportunity to drive the final nail in the coffin of using affirmative action as a factor in deciding admissions at colleges and universities. Again in a 5-4 split, the Court slammed its weighty gavel down and eliminated using race as a factor in college admissions.

Have you read enough to tear up your ticket yet? How about a preview of what’s ahead?

McCullen v. Coakley. 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 workers acting within the scope of their employment. In Hill v. Colorado, the Court in 2000 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. However, the law in Massachusetts allows employees of the clinic to approach people in the buffer zone, so the plaintiffs claim it is “a content-based distinction that allows pro-choice speech but not anti-abortion speech” and therefore is unconstitutional. 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. I predict that by a narrow margin this law will be upheld as a reasonable restraint on speech, but a one judge shift could lead to an opinion that opens the door to intrusive protests at abortion clinics and an ultimate showdown over Roe v. Wade.

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 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.

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Besides questioning Congress’s power to implement a treaty, this case has added significance in light of the use, last year, of chemical weapons in Syria. Last October I wrote:

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In this age of letting the Federal government do most anything it wants regarding ‘terrorism,’ there is no way the ‘Supremes’ are going to invalidate this law.

The oral arguments got me wondering about my prediction, but I’m going to stick to my prediction.

When is a recess a recess?
When is a recess a recess?

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. Therefore, he appointed them pursuant to the Recess Appointments clause. Canning argues that the Senate was not in “recess” since it had been conducting pro forma sessions every three days. A 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.

I predict a duck by the Court on this one, but I won’t be surprised by another 5-4 decision written by Kennedy or Roberts saying Obama overstepped.

Hobby Lobby Case. In an effort to increase access to contraceptive services and as part of the Affordable Care Act’s implementation, 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—religious and secular—argue that complying with the mandate violate tenets of their faith. Yet, failure to adhere to the law could result in huge fines. Nearly 70 lawsuits and 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 reached 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. The Court granted review of both cases and thus set the stage for the most awaited case of the term.

Two years ago, Chief Justice Roberts surprised everyone with his swing vote to uphold the legality of Obamacare. He won’t do it again, and I predict by a 5-4 vote the Court will allow companies to opt out of the contraceptive mandate. But the real danger lies in what else the Court says when it allows business to opt out.

As I wrote this April, my real fear is that wording in the decision is likely to include a further expansion of the legal concept that a corporation is entitled to the same rights and protections guaranteed to individuals by our Bill of Rights. This concept was brought to the nation’s attention in Citizens United v. Federal Election Commission, the campaign finance decision that gives free speech rights to corporations and allows them to spend millions of dollars to influence elections. At a minimum, the Hobby Lobby case is likely to expand this concept and grant for-profit corporations protection under the Religious Freedom Restoration Act of 1993. The ultimate language in the decision could go much, much further.

So it’s time to turn our attention to the beautiful building across the way from the Capitol. Every year about now, nine very serious individuals become the focus of the media and the nation. This year the battle is how far we as a nation will extend individual rights to businesses, the power of Congress versus the powers of the President, and Congress’s power to implement treaties – pretty heady stuff.  Now that the race for the Triple Crown is over, this June the Court’s decisions are worthy of our full attention.

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After California Chrome lost in the Belmont the horse’s owner complained that any horse that runs either the Preakness or Belmont Stakes must also have run in the Kentucky Derby. Saying it is totally unfair to bring in a distance horse that’s had weeks and months to rest up with the likely aim of spoiling any horse’s chance of bringing home the Triple Crown. Many people will read what the Supreme Court does this June and yell unfair and suggest changes be made. To those who will be upset, I remind you that the Court’s makeup is likely to change in a few years and the President who appoints the new justices will be elected in 2016. Don’t you think who he or she is likely to appoint to the Court is important? More important, I would say than the candidate’s hairstyle, taste in clothes, or favorite racehorse. The horse race we call a Presidential election will be here before you know it. Don’t be a spectator!

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