What To Watch Out For In The Supreme Court’s Big Remaining Cases

CREDIT: AP Photo/Manuel Balce Ceneta

The Supreme Court is in the home stretch. There are just three days left in this term — Wednesday, Thursday and next Monday — when the justices are scheduled to hand down opinions. Until these cases are decided, however, the fate of women seeking reproductive care, workers and their unions, criminal suspects with cell phones and a president thwarted by a recalcitrant Senate remain uncertain. Here’s a few things to watch out for in seven of the biggest cases that are still pending before the Court:

“Buffer Zones” At Women’s Health Clinics

McCullen v. Coakley challenges a Massachusetts law requiring protesters and other people without legitimate business at an abortion clinic to remain at least 35 feet away from its entrance. The law’s opponents claim that it violates the First Amendment rights of people who oppose abortion. Its supporters note a long history of harassment and even violence directed against clinic staff and patients, including blockades of clinic entrances, “arsons and bombings, acid attacks, stalking and kidnapping doctors and their families, and even murdering reproductive health care staff.”

What To Watch Out For: The Court is likely to strike down Massachusetts’ law. Even Obama-appointed Justice Elena Kagan expressed concerns at oral argument that this particular buffer zone law may go too far. A more uncertain question is whether the justices will reach a relatively narrow decision knocking out the Massachusetts law while permitting other, less restrictive buffer zone laws to remain in place — or whether a majority of the Court will join together to overrule a 2000 decision allowing some buffer zone laws to remain in effect. That 2000 case, Hill v. Colorado was a 6-3 decision, but two members of the Hill majority have since been replaced by more conservative justices.

Recess Appointments

Filibuster Fight NLRB

CREDIT: AP Photo/Jon Elswick

National Labor Relations Board v. Noel Canning challenges three recess appointments President Obama made to the National Labor Relations Board (NLRB), an agency that has exclusive authority to enforce most of the federal legal protections enabling workers to join together to oppose poor work conditions, to form unions, and to require employers to actually bargain with that union. Without these appointments, which were made before Senate Democrats invoked the so-called “nuclear option” to prevent their Republican counterparts from filibustering nominees, the NLRB would have lost the minimum number of members it must have in order to operate, and much of American labor law would have simply ceased functioning.

What To Watch Out For: The plaintiffs in this case offer three different theories challenging the recess appointments. One argues that such appointments can only be made if a vacancy arises during a brief window that may only last for a few seconds a year. Another argues that recess appointments are invalid unless they are made during this brief window. Still another claims that the Senate can defeat the president’s recess power by holding sham sessions every three days. In any event, the oral argument appeared to go badly for the Obama Administration, and any of these three theories will suffice to kill all future recess appointments whenever the Senate does not want the president to make them.

Should the Court side against the administration, the most important question will come in 2018, when the terms of the NLRB’s current members (who were confirmed by the Senate post-nuclear option) expire. If the Court kills the recess appointments power the Senate will have the unilateral power to suspend workers’ rights that stretch back to the Franklin Roosevelt Administration simply by refusing to confirm anyone to the NLRB.

Cops Reading Your Email

Gang Indictment

CREDIT: AP Photo/Damian Dovarganes

Riley v. California and United States v. Wurie both give the justices an opportunity to update Fourth Amendment law that was developed long before the invention of the cell phone — much less the invention of pocket-sized computers that can access much of our most personal information. Although the Constitution typically requires police to obtain a warrant before they can search a person’s possessions, the Court has long recognized that when a person is lawfully arrested, law enforcement officers may search the person being arrested and anything they find on them without a warrant. Riley and Wurie present the question of whether cell phones should require a warrant to be searched even if they are found on a person being arrested.

What To Watch Out For: At oral argument, the all-important Justice Anthony Kennedy expressed concerns that people arrested for crimes as minor as jaywalking could have their entire financial life revealed to police who search their cell phone, yet it remains to be seen whether the justices will require a warrant in all cell phone searches. One possible window into their thinking is that Riley involves a smartphone, which may allow police to access a person’s email inbox, the text messages they sent to romantic partners, and any apps they use to help them manage their finances. Wurie, on the other hand, involves a search of an ordinary cell phone’s call log. The justices may have heard these two cases together because they intend to create different rules for different kinds of phones.

The Future Of Unions

I am a man


Harris v. Quinn is a case brought by a leading anti-union advocacy group seeking to undermine public sector unions’ financial viability. Currently, the law requires unions to bargain on behalf of all workers in a unionized shop, regardless of whether that particular worker is a member of the union. Yet it also permits unions to charge non-members what are known as “agency fees” to recoup the costs of bargaining on their behalf. Thus, unions will generally bargain for higher wages on behalf of all workers in a shop — according to one study, unionization raises worker wages by about 12 percent — but individual workers cannot free-ride off the union’s efforts by refusing to pay for the union’s services.

What To Watch Out For: Oddly enough, the most important justice to watch in this case is the conservative icon Antonin Scalia. Although Scalia joined a 2012 opinion by Justice Samuel Alito claiming that requiring non-members to reimburse a union for the cost of collective bargaining “constitute[s] a form of compelled speech and association that imposes a ‘significant impingement on First Amendment rights,'” Scalia appeared much more sympathetic to the union position at oral argument in Harris than his decision to join Alito’s opinion would suggest.

Your Boss’s Religion


CREDIT: AP Photo/Charles Dharapak

Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius present the question of whether a business owner who objects to birth control on religious grounds can refuse to comply with federal rules requiring most employer-provided health plans to cover contraceptive care. Yet it is also the first wave of a much broader effort by religious conservatives to immunize themselves from legislative and judicial decisions that they expect to lose. For decades, the guide star of American religious liberty law has been a simple principle — one person’s religious liberty ends when it is used to strip away the rights of another. Hobby Lobby and Conestoga Wood seek to tear down this principle and replace it with a new rule that would subject every attempt to enforce a law against someone who objects to it on religious grounds to the “most demanding test known to constitutional law.”

What To Watch Out For: At oral argument, Justice Kennedy appeared somewhat conflicted over this case. One the one hand, he worried that a decision for Hobby Lobby and Conestoga Wood would undermine the rights of employees who could be hurt by their employer’s decision not to follow the law. On the other hand, he worried that if the government has the power to require health plans to cover birth control then they may also someday require them to cover abortion. For this reason, Kennedy may seek out an outcome that reconciles his fairly strong record on gay rights — if Hobby Lobby and Conestoga Wood win, that could bolster efforts by anti-gay business owners to claim religious exemptions to gay rights laws — with his opposition to abortion. Thus, if the government loses, it matters a great deal how it loses, and whether that loss will enable the sweeping legal immunities for religious business owners that Hobby Lobby sought in its brief.