Outside the Beltway

Previewing Another Busy June For The Supreme Court

It's that time of year again.

Doug Mataconis · Monday, June 2, 2014 · 6 comments

As we reach the month of June, we once again find ourselves heading into the month in which the Supreme Court will make the biggest news of the term that began back in October 2013. While there have already been some opinions released in high profile cases, mostly from cases that were heard in October, November and December, the majority of cases that the general public is going to be most interested in are once again waiting for their traditional June release. To some degree, this has been standard practice at the court for decades now, and while many suspect that there are often political or public relations motives involved in the last minute releases, it’s typically the case that the high profile cases are also the most complex cases and opinions in complex cases often take longer to draft. This is especially true if there are a number of concurring and dissenting opinions which often end up being linked to each other in one way or another.

Last year, the month of June saw the release of opinions in high profile cases involving the Voting Rights Act, state voter registration requirements, the 4th Amendment, and, of course, the Court’s landmark opinions on same-sex marriage in Perry v. Hollingsworth and United States v. Windsor. This year’s crop of June cases promise to be equally interesting. The Court is set to release opinions in cases on issues such as the question of whether or not a state can criminalize allegedly false political speech, whether police have to obtain a warrant in order to search a smartphone when someone is arrested, whether a company that retransmits network television broadcasts sent out over public airwaves is violating the network’s intellectual property rights, the limits and scope of the President’s recess appointment power, and the question of whether or not the owner of a corporate entity can assert a religious objection to complying with the Affordable Care Act’s contraceptive coverage mandate.

These opinions will be issued on decision days that are currently scheduled for June 2nd, 9th, 16th, 23rd and 30th, although the Court may add or delete scheduled decisions days depending on how the workflow goes for the next month. In total, though, there are some 25 opinions still waiting to be issued so I would expect that the Court will keep all five days on the calendar, which would mean at least five opinions issued per day, or add one or two more at some point along the way. In any case, here’s a short review, in no particular order, of the cases likely to make the most headlines between now and the end of June.

National Labor Relations Board v. Noel Canning

This case deals with the Presidential recess appointment power and the question of whether or not an appointment made when the Senate, though formally not in session, is still holding pro forma sessions lasting no more than a few moments every three days. Specifically at issue are President Obama’s appointments to the National Labor Relations Board in January 2012. Canning is an employer who was among the first to file a legal challenge to the appointments, alleging that the appointments were unconstitutional because Congress was not actually ‘out of session’ as that term is meant in the Constitution. While I was skeptical of the argument myself, the Circuit Court of Appeals for the D.C. Circuit found the appointments to be unconstitutional in an opinion that was, frankly, quite persuasive. Oral argument in this case occurred in January when I was unable to blog about them, but the round-ups by Lyle Denniston and Amy Howe did a far better job than I likely could have anyway. From those summaries, it does appear that the recess appointment power, at least as it has been exercised in recent decades, is indeed in jeopardy.

The SCOTUSBlog information page for Canning has links to all the relevant case filings.

Susan B. Anthony List v. Driehaus

This case orginates in the debate over the Affordable Care Act and the claims by opponents that, notwithstanding the protections put into the law, that it effectively allows for the use of public funds to pay for abortions. In the 2010 elections, the Susan B. Anthony List, a conservative pro-life organization, campaigned against Ohio Democratic Congressman Steve Driehaus alleging that he had voted to publicly fund abortions by voting for the PPACA. Driehaus lost the election and, a month later, filed a lawsuit against the SBA List based on an Ohio statute that purports to criminalize false statements made during the course of a political campaign. Driehaus’s claims were eventually dismissed, but the underlying lawsuit that the SBA List had filed, which in part challenged the constitutionality of the Ohio was allowed to proceed and was argued before the Supreme Court in April. The case is unusual from a procedural point of view in that Ohio’s Attorney General, former Senator Mike DeWine, filed briefs on both sides of the case, arguing both for and against the constitutionality of the law. As I noted in my own posts on this matter going back to 2010, the idea of a politician being able to potentially chill opposing speech by using a law like this is quite troubling, and one suspects that the Court will strike the law down, although likely in an opinion that will leave the door open for standard claims of libel, slander, and defamation.

The SCOTUSBlog information page for this case can be found here.

American Broadcasting Companies, Inc. v. Aereo, Inc.

This case involves a lawsuit filed by ABC, joined by all three of the other major broadcast networks as well as other interested parties, against Aereo, a company started by Barry Diller, the man who was the brains behind Twenty Century Fox’s plan to create a fourth nationwide broadcast network. Aereo’s business model essentially involves intercepting the over-the-air broadcasts of the networks and then repackaging it for its subscribers, allowing them to watch it on a time-delayed basis along with other enhancements typically only available with subscription to cable and a digital video recorder. The networks, obviously, argue that what Aereo does is little better than piracy and that, absent rebroadcast agreements with the networks, they should not be permitted to continue to operate in the manner that they do. As I stated when the case was set to be argued in April, it seems apparent that the networks have the stronger argument here. Based on the summaries of the oral argument by Lyle Denniston and Amy Howe, it seems like the most notable thing about the argument itself was the extent to which it revealed how unfamiliar some Justices are with technology. On the merits, though, it seems unlikely to me that Aereo will walk away from the winner here.

All of the relevant filings can be found at the SCOTUSBlog Information page for ABC v. Aero

Riley v. California/United States v. Wurie

Although they raise slightly different legal issues, these two cases deal with essentially the same question, whether or not police should be required to obtain a search warrant before searching the contents of a smartphone or cell phone after they have taken someone into custody. This is an issue that has made its way through the Federal Courts and state-level trial courts for several years now, and we’ve gotten inconsistent rulings on the question from more than one source. As I noted when the Court heard oral argument on this case in April, it seemed apparent that the Justices do believe that there ought to be some limitations on warrantless cell phone searches, but the question is what those limits are and what kind of guidance the Court can give to the trial court judges and Federal Magistrates who will have to entertain search warrant requests in the future. Indeed, no matter what the court decides in these case it seems obvious that this is an issue that will continue to be litigated as law enforcement, judges, and defense attorneys explore the boundaries of a new are of law created by new technology.

SCOTUSBlog has separate information pages for Riley v. California and United States v. Wurie.

Sebelius v. Hobby Lobby Stores Inc./Conestoga Wood Specialties v. Sebelius

Like Driehaus, these cases are related to the Affordable Care Act, although in this case the issues involved deal directly with the statute. Specifically, Hobby Lobby and Conestoga are two of the many privately-held for profit corporations that have filed lawsuits against the requirement issued by the Dept. of Health And Human Services pursuant to the PPACA that requires employer based health insurance plans to cover contraceptives at no extra cost to employees. These lawsuits claimed that the regulation violates their rights under the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act in that it requires them to pay for certain drugs which they contend are abortifaceants. These claims have met with inconsistent success in the Circuit Courts, although the employers have scored significant victories based primarily on their arguments under the RFRA, as I noted here and here. In November, two of those cases were accepted for appeal by the Supreme Court.  The case was argued in March, ironically enough on the anniversary of the oral arguments in the challenge to the PPACA that was heard by the Court in 2012 and, as I noted, it seemed as though the Court was sympathetic to the RFRA-based arguments of the companies, although it was somewhat of a hard read. The summaries by Lyle Denniston and Amy Howe leave the same impression. The manner in which the Court decides this case will have broad implications for the future course of religious liberty law, as well as a profound impact on similar arguments being made in connection with same-sex marriages.

Both Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties v. Seblius have their own case pages at SCOTUSBlog.

As usual, SCOTUSBlog will be live blogging all of the Court’s June Decision Days beginning this morning, and we’ll have coverage of the major cases here at OTB as time permits.