ZONE DEFENSE: The court rejected a 35-foot no-protest zone outside women’s clinics. (AP / Steven Senne)
As usual, the U.S. Supreme Court saved its biggest decisions for the end of its term, ruling last week in favor of cellphone privacy, broadcast television, abortion clinic demonstrators and restrictions on presidential power.
The justices return for a final bow on June 30. The only cases left undecided are a dispute over the contraceptive mandate under the Affordable Care Act and Harris v. Quinn, a key challenge to public-employee union fees charged to nonmembers.
Combined with other recent rulings on securities class actions, the story line for the term — even though unfinished — seems a mix of liberal and conservative rulings, often unanimous and not always favoring business or law enforcement.
On June 25, the court’s unanimous decision protecting cellphones from police scrutiny drew the loudest cheers from the American Civil Liberties Union and other liberal groups. The cheering may soon stop, but it was noteworthy while it lasted. What follows are highlights from last week’s key rulings:
A major separation-of-powers decision by the U.S. Supreme Court on June 26 may prevent President Barack Obama from making recess appointments for the rest of his tenure, and will trigger uncertainty for months or years to come at the National Labor Relations Board.
Ruling in National Labor Relations Board v. Noel Canning, the court invalidated three recess appointments Obama made to the board during a brief Senate recess in January 2012. The three-day recess, the court agreed, was too short to trigger the president’s power under the Constitution to “fill up all Vacancies that may happen during the Recess of the Senate.”
A recess lasting fewer than 10 days is “presumptively too short to fall within the clause,” Justice Stephen Breyer wrote in an opinion joined by justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
The decision thwarted Obama’s first-term tactic for making appointments in the face of resistance from Senate Republicans. They had initiated a series of very brief “pro forma” sessions every Tuesday and Friday during longer recesses, with the goal of preventing recess appointments. Obama regarded those short breaks as true recesses that allowed him to make recess appointments.
The high court said those pro forma sessions deserved recognition. “The Senate is in session when it says it is,” Breyer wrote, “provided that, under its own rules, it retains the capacity to transact Senate business.”
But the court stopped short of ruling that recess appointments could only take place between the formal two-year sessions of each Congress. And the court interpreted the recess clause of the Constitution to mean that a vacancy did not need to actually arise during a recess, but could be filled during a recess after the vacancy occurred.
The U.S. Supreme Court’s landmark decision protecting cellphone privacy sent a strong signal that the ­admittedly low-tech justices grasp the profound changes that the Information Age has wrought.
“Modern cellphones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life,’ ” Chief Justice John Roberts Jr. wrote for the court. Cellphones and smartphones are “ now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”
Ruling in Riley v. California and United States v. Wurie, the court said that, with rare exceptions, the Fourth Amendment requires that police obtain a search warrant to probe the contents of modern-day phones in the possession of arrestees. Rejecting government assertions of the need for quick access to phone contents, the court stressed the damage to personal privacy that would result from police seizure of devices that “place vast quantities of personal information literally in the hands of individuals.”
In tone and substance, Roberts’ decision seemed aimed at giving the court’s acknowledgement, if not blessing, to a new American era — much as Reno v. ACLU in 1997 commemorated the birth of the Internet, comparing it then to the colonial “town crier” deserving of full First Amendment protection.
The ruling was similar in retrofitting modern technology to the intention of the Constitution’s framers. Because of the vast data stored on phones, searching them could yield the same information that British soldiers could obtain by rummaging through a colonial home, the court suggested.
Justice Samuel Alito Jr. issued a brief concurrence with a different take on some aspects, but agreed with the need for a clear rule for cellphone searches.
Criminal cases often divide the court, Ilya Shapiro of the Cato Institute said. But “here we have a loud and unified ‘bright-line rule’ that sets a major standard for the digital age. Kudos to the court — and raspberries to the federal government.”
On June 26, the court ­unanimously struck down a 35-foot buffer zone around Massachusetts abortion clinics. The justices were far from unanimous in their legal reasoning. For the ­dissenters — Antonin Scalia, Anthony Kennedy and Clarence Thomas — the decision was an opinion half empty. They wanted to overrule Hill v. Colorado, a 6-3 precedent from 2000 rejecting a First Amendment challenge to that state’s eight-foot buffer zone around abortion-clinic entrances.
In McCullen v. Coakley, Roberts said nothing about Hill, but left uncertain the constitutionality of similar or future abortion-clinic buffer zones. He rejected the challengers’ arguments that the law discriminated on basis of viewpoint. State lawmakers, he said, were responding to a problem limited to abortion clinics: crowding, obstruction and even violence.
But the law failed to meet another requirement under the court’s First Amendment analysis, Roberts said: It had to be narrowly tailored to serve a significant governmental interest. The court, he wrote, has recognized the legitimacy of the government’s interests in ensuring public safety and order; protecting property rights; and protecting a woman’s freedom to seek pregnancy-related services. The buffer zones, he said, “clearly” serve those interests.
“At the same time, the buffer zones impose serious burdens on petitioners’ speech,” he said. The challengers in the case sought “not merely to express their opposition to abortion, but to inform women of various alternatives and to provide help in pursuing them. Petitioners believe that they can accomplish this objective only through personal, caring, consensual conversations.”
Said Roger Evans, senior counsel of Planned Parenthood Federation of America: “I expect buffer zones across the country, regardless of [the number of] feet, will be challenged based on this decision. If you were a betting man, you would bet that they’ll all go.”
The U.S. Supreme Court’s decision on June 25 handing a major copyright victory to network broadcast companies over the upstart Aereo Inc. streaming service was widely seen as narrow and unlikely to stifle new technologies.
“Despite what some are saying, this decision is a boon, not a threat, to innovation,” said Mark Schultz of George Mason University School of Law’s Center for the Protection of Intellectual Property.
“Studios and TV networks are investing hundreds of millions of dollars into new business models and are licensing their creative works to dozens of new entrants,” he said. “They can now continue to make these innovative investments with greater certainty that they won’t be undermined by overly technical interpretations of their rights.”
Although the court stressed that it was not addressing other technologies, including cloud computing and remote-storage DVRs, “The reality is, in some regard, that remains to be seen,” said intellectual property litigator Craig Whitney of Morrison & Foerster. “You would have to think any future technology being scrutinized for public-performance violations of the Copyright Act is going to be analyzed now under the Aereo case.”
In American Broadcasting Cos. v. Aereo, a 6-3 majority, led by Justice Stephen Breyer, declared that Aereo violated the major commercial broadcast networks’ exclusive right under the federal Copyright Act to “publicly perform” their works by retransmitting network programming to consumers’ Internet devices for a fee. The key questions, according to Breyer, were whether Aereo Inc. “performs” the copyrighted works and, if so, whether it was done “publicly.”
Aereo’s system relies on thousands of dime-sized, individual antennas arranged on large antenna boards at its central facility in Long Island City, N.Y., which record broadcast programs and transmits to customers after a few seconds delay.