With Major Rulings Pending, Supreme Court Enters Homestretch

With Major Rulings Pending, Supreme Court Enters Homestretch Diego M. Radzinschi Nancy Elliott, of New Hampshire, center, prays during a demonstratration outside the U.S. Supreme Court on Tuesday, March 25, 2014, during arguments in Sebelius v. Hobby Lobby Stores, Inc.

California Chrome’s homestretch run ended Saturday, but the U.S. Supreme Court is just entering its own homestretch with a number of potentially major rulings ahead.

If past is prologue, the justices have three weeks remaining, including this week, to wrap up the October 2013-14 term. They already have added a second day of decisions for this week—Thursday—a popular decision day because all of the justices are in town for their weekly conference. The court is likely to continue to have two or more decision days in the final weeks.

The court issued three decisions on Monday and added no new cases to the docket for next term. The justices have 19 cases still pending decision (counting consolidated cases as one)—and, as is typical for this time of year, they have left to the end some of the highest profile challenges.

Also typical of the final weeks, law firms and law schools are offering up daily their best experts to offer commentary on what the justices have done.

The oldest case of the term is one of the biggest: National Labor Relations Board v. Noel Canning. The justices heard arguments January 13 in what is their first exploration of the meaning and scope of the Constitution’s recess appointments clause. The most recently argued case still pending is United States v. Wurie, heard on April 29 and one of two cases involving warrantless searches of cell phones.

Some court watchers predict that decisions in Noel Canning and another potential blockbuster—the religion challenge to the Affordable Care Act: Sebelius v. Hobby Lobby joined with Conestoga Wood v. Sebelius—will arrive on the term’s last day.

The court may find a narrow way to resolve the health care challenge, Ilya Somin of George Mason University School of Law said.

The justices last week in Bond v. United States, he explained, avoided ruling on a challenge to Congress’ treaty powers by interpreting, instead, the law implementing a chemical weapons treaty and its application to a local crime.

“There’s a good likelihood that if Hobby Lobby does prevail, the justices will try to make a narrow ruling based on the Religious Freedom Restoration Act and avoid the big constitutional question (involving the First Amendment free exercise clause),” Somin said.

Elizabeth Wydra, chief counsel of the Constitutional Accountability Center, said she will look at Hobby Lobby “to see how the court deals with the threshold question of whether secular corporations can bring a claim of religious free exercise, a constitutional right that the Court has never before interpreted to include for-profit commercial corporations.”

The decision, Wydra added, could follow in the footsteps of Citizens United, “in which the Roberts Court reads the First Amendment in a new way to give corporations constitutional rights that only individuals had previously been thought to enjoy.”

Wydra said she also will watch whether an alliance of liberal and libertarian justices will come together in the cell phone cases to protect their owners’ Fourth Amendment rights. She noted that just such an alliance emerged in amicus briefs supporting the individuals whose phones were searched. That ideological crossover, she said, seemed to be reflected on the bench during oral arguments “as many of the justices appeared to struggle with the government’s argument excluding smartphones from the Fourth Amendment’s protections.”

Richard Samp of the pro-business Washington Legal Foundation is homing in on Noel Canning and a gaggle of pending cases involving the authority of the Environmental Protection Agency to regulate greenhouse gas emissions from stationary sources based on its authority to regulate those emissions from new motor vehicles.

During the last several terms, Samp noted, the court has shown renewed interest in separation-of-powers issues. “On the one hand, it has been reluctant to strike down the actions of Congress and the Executive Branch based on naked assertions of its own constitutional authority,” Samp said. The justices’ rejection of the 2012 challenge to the Affordable Care Act, he said, is the best illustration of that reluctance.

“On the other hand, the court has been willing to check Executive Branch actions when it concludes that the Executive is responding to ‘changed circumstances’ by devising novel bases for asserting expanded regulatory authority rather than by requesting that Congress grant it new authority,” he said.

Based on that observation, Samp suggested the EPA may lose because it was given no clear authority by Congress to regulate stationary sources.

As for Noel Canning, Samp said he thinks a majority of the court will be unwilling to challenge the long-standing practice of making recess appointments at times other than between sessions of Congress and when a vacancy exists before a session begins.

Samp said he expects “the court to rule that the Senate has the right to determine for itself whether it is in recess, and that the president exceeded his powers by ignoring that determination.”

Check out SCB’s “SCOTUS Hot List” below of cases yet to be decided and tune in Thursday for more decisions.

SCOTUS Hot List

Health Care

Sebelius v. Hobby Lobby; Conestoga Wood Specialties v. Sebelius

The Affordable Care Act covers preventative services for women including contraceptive coverage. Two for-profit companies and their owners contend that the contraceptive coverage requirement burdens their religious beliefs in violation of the First Amendment free exercise clause and the federal Religious Freedom Restoration Act.

Securities

Halliburton Co. v. Erica P. John Fund

The securities and plaintiffs bars are holding their breath on this one. It involves the fraud-on-the-market theory of liability in a class action which, according to a 1988 high court decision, presumes plaintiffs relied on the misrepresentation when they purchased the stock. In a recent report on the case, the New York City Bar Association’s committee on securities litigation said, “The Supreme Court’s decision … whatever that decision may be, will be a landmark event in the world of class action securities litigation.”

Patents/Copyrights

Alice Corp. Ltd v. CLS Bank International

Tech companies are eagerly and anxiously awaiting the justices’ verdict on the patent eligibility of software and other computer-implemented inventions.

American Broadcasting Cos. v. Aereo Inc.

The justices jumped into streaming and cloud computing in this case. ABC and other major commercial broadcasters accuse Aereo, a streaming startup venture, of violating their copyrights by retransmitting network programming to consumers’ Internet devices for a fee.

Environment

Utility Air Regulatory Group v. EPA

The court consolidated six challenges to determine whether EPA’s authority over tailpipe emissions triggered the broader power to regulate emissions of the same pollutants from stationary sources.

Cell phone searches

Riley v. California and United States v. Wurie

Are warrantless searches of a smart phone or a flip phone in violation of the Fourth Amendment? America wants to know! In U.S. v. Wurie, The U.S. Court of Appeals for the First Circuit—which urged the Supreme Court to review the case—said the authorities need a warrant to inspect a phone that belongs to a person under arrest.

Recess Appointments

National Labor Relations Board v. Noel Canning

A stand-off in the U.S. Senate over President Obama’s appointees led to this showdown over the constitutionality of the president’s labor board recess appointments under the recess appointments clause.

Abortion

McCullen v. Coakley

In 2000, a 6-3 majority upheld a buffer zone around Colorado abortion facilities that prevented anyone within 100 feet of a clinic from approaching within eight feet of someone entering the clinic. This time, the justices examine the First Amendment implications of a 35-foot buffer zone around Massachusetts abortion clinics.

Unions

Harris v. Quinn

The fate of public employee unions may be at stake as the justices decide whether agency fees charged to non-union members to cover collective bargaining costs violate the First Amendment.

Contact Marcia Coyle at mcoyle@alm.com.

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