“The generally accepted notion that the court can only hear roughly 150 cases each term gives the same sense of reassurance as the adjournment of the court in July, when we know the Constitution is safe for the summer.”
It’s Supreme Court month again. According to the Court’s official calendar, the final day of the Supreme Court’s current term is the last day of this month — which means that, barring extraordinary circumstances, we should know how the justices intend to resolve each of the issues currently pending before them by June 30.
Among the issues facing the justices are the president’s power to fill top jobs in the face of a recalcitrant Senate, a legal attack on public sector unions, a case questioning when police can search all the data that can be accessed on a person’s cell phone, and an attempt to give employers sweeping immunity from laws they object to on religious grounds. Here are some of the most important cases to be decided this month:
On the eve of the Supreme Court’s oral arguments in National Labor Relations Board v. Noel Canning, a case that could effectively eliminate the president’s constitutional authority to temporarily appoint government officials while the Senate is in recess, the Obama Administration’s position looked grim. In the lower courts, judges split entirely on partisan lines when they considered this issue — and there are five Republicans on the Supreme Court and only four Democrats. Yet the oral argument in Noel Canning went even worse for the administration than the partisan results in the lower courts would suggest. Clinton-appointed Justice Stephen Breyer said that he could not find anything in the Constitution that will “allow the president to overcome Senate resistance” to a nominee. Obama-appointed Justice Elena Kagan suggested that “it was the Senate’s job to decide” when it’s in recess.
Though there are two possible ways that the justices could snuff out the recess appointments power, the distinction between them is largely academic — in either event a Senate that was determined not to permit recess appointees from taking office will be able to do so. That means that the impact of this decision could be felt in 2015. If Republicans take back the Senate, and the Supreme Court cuts off his recess appointments power, President Obama will be defenseless if Senate Republicans refuse to confirm anyone that he nominates to any job.
The biggest impact of a decision against the administration, however, could be felt in 2018. The reason why President Obama made the recess appointments that triggered this lawsuit in the first place is because the National Labor Relations Board — which has sole authority to enforce much of federal labor law — was about to lose the minimum number of members it must have in order to operate. Though this impasse eventually broke in 2013 when Senate Democrats threatened to change the Senate’s rules if necessary to confirm nominees to the NLRB, the members of that board only serve five year terms. Thus, if Republicans control the Senate in 2018, they could shut down the NLRB by refusing to confirm anyone to fill its empty seats — and shut down most of the legal protections that allow unions to exist in the process.
Harassment at Women’s Health Clinics
A Massachusetts law creates a 35-foot buffer zone around the entrances to abortion clinics that no one may enter unless they have legitimate business within the clinic or are just passing through to reach another destination. This law prevents abortion protesters, ranging from the plaintiffs in McCullen v. Coakley — who claim that they “try to engage women who may be seeking abortions in close, kind, personal communication, with calm voices, caring demeanor, and eye contact” — to much more aggressive opponents of abortion from getting in the way of women seeking care within the clinic. They also make it harder for clinic workers to become victims of violence. According to one abortion rights activist, “[w]hat began as peaceful protests in the 1970s escalated to blockading clinic entrances, arsons and bombings, acid attacks, stalking and kidnapping doctors and their families, and even murdering reproductive health care staff.”
Nevertheless, it is likely that the Supreme Court will strike this Massachusetts law down. At oral argument, even Justice Kagan seemed concerned that the 35-foot buffer zone may be too large. The biggest question in McCullen, however, isn’t whether Massachusetts’ law will survive, it is whether any similar buffer zone law will also be declared unconstitutional. In its 2000 decision in Hill v. Colorado, the Supreme Court upheld a Colorado law prohibiting anyone from “’knowingly approach[ing]’ within eight feet of another person, without that person’s consent, ‘for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.’” Hill was a 6–3 decision, but two members of the Hill majority — Chief Justice William Rehnquist and Justice Sandra Day O’Connor — have since been replaced by the more conservative Chief Justice John Roberts and Justice Samuel Alito. If the Roberts Court’s new majority chooses to overrule Hill they probably have the five votes necessary to do so.
Cell Phone Searches
As a general rule, the police must obtain a warrant before they can search a person’s possessions. One long-standing exception to this rule, however, is that police may make a warrantless “search incident to arrest” — that is, when a person is lawfully arrested, the police may search the person being arrested and anything they find on the person.
When this rule was developed, however, cell phones did not exist and modern-day smartphones were not even imaginable. For this reason, the justices who created this rule had no conception of a world where police could arrest someone for a minor crime — potentially something as minor as jaywalking — and then go on a fishing expedition through a person’s entire email inbox, the text messages they sent to their friends and their romantic partners, and any apps they may have downloaded onto their phone to help them manage their finances. One case currently pending before the justices, Riley v. California tees up the question of if and when the police may search the information contained on a suspect’s smartphone without obtaining a warrant. A companion case, United States v. Wurie presents the related issue of whether police may search an ordinary cell-phone’s call log without a warrant.
Public Sector Unions
Public sector unions operate under two legal restrictions: they may not require non-members to fund the union’s political activity and they must bargain on behalf of every worker in a unionized shop — even if a particular worker does not belong to the union. Thus, the union may not encourage non-members to join by bargaining for benefits that only apply to union members. To recoup the costs of bargaining on behalf of non-members, however, the union may charge those non-members what are known as “agency fees.” These agency fees are now under attack in a lawsuit known as Harris v. Quinn.
The purpose of these agency fees is to prevent non-members from free-riding off the dues paid by their co-workers who do join the union. The benefits of collective bargaining through unions are significant — according to one study, unionization raises worker wages by about 12 percent — but, without agency fees, each individual worker would have little incentive to pay for the collective bargaining services that make these high wages possible.
In a 2012 case called Knox v. SEIU, the five conservative justices indicated that they were ready to declare agency fees unconstitutional — at least when it comes to public sector unions. At oral argument, however, Justice Antonin Scalia appeared surprisingly sympathetic to the pro-union arguments. The fate of public sector unions, in other words, likely rests with Justice Scalia.
The Viability of Treaties
Bond v. United States is, if nothing else, a testament to legal conservatives’ ability to play the long game. A vengeful spouse named Carol Anne Bond, who stole toxic chemicals from her employer and used them in a failed attempt to poison her husband’s mistress, is represented by Paul Clement — the de facto Solicitor General of the Republican Party — as part of an effort to undermine the United States’ ability to comply with its own treaty obligations. Bond’s actions violated a federal law implementing the 1993 Chemical Weapons Convention, which makes it a crime to “receive, stockpile, retain, own, possess, use, or threaten to use” a chemical weapon. Clement argues that applying this law to his client is unconstitutional, because that would require Congress’ power to be read too expansively.
The problem with this argument is that the Court established nearly a century ago that, when the United States enters into a valid treaty, “there can be no dispute about the validity of the statute [implementing the treaty] . . . as a necessary and proper means to execute the powers of the Government.” Should the Court limit or overrule this previous decision, the immediate impact would be relatively small compared to what could follow later — Congress still has considerable power to make laws under its power to regulate commerce and its other constitutionally granted powers, though Clement’s has also fought to shrink these powers as well. If the justices ultimately embrace the broader conservative effort to shrink the government’s authority until it is small enough to be drowned in a bathtub, a decision in Bond’s favor could make it difficult for the United States to comply with environmental treaties and other international obligations.
Your Boss and Your Bedroom
Finally, the most watched case this term is likely to be the Hobby Lobby litigation, which raises the issue of whether religious employers can refuse to comply with a federal rule requiring their health plans to cover birth control. If the oral argument is any indication, supporters of this rule should not be optimistic. Justice Anthony Kennedy, the only member of the five justice conservative bloc who expressed sympathy for the government’s arguments, later accused Solicitor General Don Verrilli of making an argument that could enable Congress to require corporations to pay for abortions. Given that Kennedy, with one exception, has a virtually unblemished anti-abortion record since joining the Supreme Court, this is an ominous sign for the rule at issue in this case.
Nevertheless, the question of how the government loses this case is almost as important as if it loses. Clement, who argued this case on behalf of the religious employers, called for a truly sweeping rule — laws burdening a corporation’s purported religious faith must survive the “most demanding test known to constitutional law.” At times, plaintiffs invoking “religious liberty” have claimed exemptions from a wide range of laws, including laws banning race discrimination, bans on gender discrimination, the minimum wage, Social Security and most recently, laws protecting LGBT Americans. Though these aggressive kinds of religious liberty claims have historically not received a sympathetic ear from federal judges, Clement’s broad rule could give at least some of them a second life.
It’s not at all clear that the Court will give Clement what he asked for, however. Though Kennedy seemed inclined to rule in Hobby Lobby’s favor, he also worried about what would happen to the rights of employees who might be hurt by their boss’ decision not to follow the law. This suggests that Justice Kennedy may hand a victory to Hobby Lobby without endorsing the sweeping legal immunity for businesses that object to the law on religious grounds that Clement called for in his brief. Nevertheless, however the Court decides, the issue of whether anti-gay business owners can invoke “religious liberty” to discriminate against LGBT Americans is not going away. Indeed, it’s likely that a raft of bills seeking to expand religious conservatives’ ability to ignore the law will follow the Court’s decision in Hobby Lobby, regardless of what the justices decide.