Supreme Court

  • July 1, 2014
    Guest Post

    by Nicole G. Berner, Associate General Counsel, Service Employees International Union

    In a narrowly divided opinion, the conservative majority of the Supreme Court in Harris v. Quinn ruled against homecare workers who provide crucial care to people with disabilities and the elderly and to the consumers who rely upon that care to live independently and with dignity in their homes. Harris v. Quinn was brought by the National Right to Work Legal Defense Foundation, an extreme anti-worker group funded by the likes of the Koch brothers and the Walton family. The case is part of a broader concerted attack on working people and women in this country. Although the June 30 ruling is a setback for homecare workers, our members are more determined than ever to ensure quality care for people with disabilities and seniors, all of whom want nothing more than to enable this population to live independently and with dignity at home.

    The petitioners asked the Court to disregard one of the bedrock principles of Supreme Court jurisprudence (stare decisis) and to overrule Abood v. Detroit Board of Education, 431 U. S. 209 (1977), a case relied on and reaffirmed in myriad cases since it was decided nearly four decades ago. In Abood, the Court held that a government entity may, consistent with the First Amendment, require public service employees to pay a fair share of the cost that a union incurs negotiating on their behalf for better terms of employment. While the Court declined the invitation to overrule Abood – a decision that would have radically restructured public sector labor relations in this country – the majority instead ruled that Abood’s protections do not extend to home care workers in the State of Illinois.

    The Court’s narrow ruling leaves intact the right of most public service workers such as teachers, fire fighters, and police officers to join together in a union and to negotiate for fair share arrangements. The ruling also leaves intact the rights of the Illinois homecare workers to form a union and to bargain collectively through an exclusive bargaining representative. But the conservative five-justice majority carved out an exception to Abood for the tens of thousands of homecare workers in Illinois, thereby weakening the ability of this majority female workforce to advocate collectively for improved working conditions and quality care.

  • June 30, 2014
    Guest Post

    by Alex J. Luchenitser, Associate Legal Director for Americans United for Separation of Church and State

    Two things stand out to me about this morning’s 5-4 decision in Burwell v. Hobby Lobby Stores that the Religious Freedom Restoration Act (RFRA) grants “religious” for-profit corporations an exemption from regulations requiring businesses to include coverage for contraceptives in their health insurance plans:

    First, the majority opinion attempts to hold itself out as a limited, cautious one. A closer look, however, shows that it is no such thing.

    Second, even though Justice Kennedy joined the five-justice majority opinion, his separate concurring opinion indicates that he disagrees with the majority in important respects. In such circumstances, a Justice normally joins a colleague’s opinion only in part, at most. Justice Kennedy’s imprudent joinder of the majority’s entire opinion will likely lead to mischief and confusion in the lower courts.

    Applicability to for-profit corporations

    The majority’s analysis begins with the conclusion that RFRA protects the religious “beliefs” of for-profit corporations, even though it is quite doubtful that the senators and representatives who voted for RFRA expected it to extend that far.

    The majority attempts to “limit” its ruling on this issue by stating that it is addressing only closely-held for-profit corporations here, and that it is not deciding whether RFRA also covers publicly-traded corporations.  But a reading of the majority’s reasoning on this issue — including its explanation that the word “person,” as used in RFRA, is defined as covering all corporations by a law called “the Dictionary Act” — leaves no doubt that the same result will ensue in the case of publicly-traded entities.

    The majority’s real attempt to answer concerns about extending the coverage of RFRA to all for-profit entities is to say: “don’t worry about it,” it’s unlikely that a publicly-traded corporation will attempt to impose religious requirements on its employers because it probably won’t be able to agree internally on any particular religious belief. This should not be of comfort to employees.

    Perhaps smaller, minority religions will not be able to impose their religious views on employees through publicly-traded corporations. But there is no reason to be confident that the religious views held by the majority of persons wealthy enough to own stock, at least in a particular industry or field, won’t give rise to RFRA claims by large, publicly-traded entities. In other words, employees need only worry about being subjected to majority religious views, of the better-off.

  • June 26, 2014

    by Jeremy Leaming

    ACS will conduct its annual Supreme Court review tomorrow covering most of the high-profile cases that have come down this term and looking ahead to Monday when more opinions are expected. We are still waiting for opinions in Sebelius v. Hobby Lobby, regarding the contraception policy of the Affordable Care Act, and Harris v. Quinn, a case involving a First Amendment challenge to union representation of state home care workers.

    The high court today issued opinions in NLRB v. Noel Canning, involving the president’s recess appointments power, and McCullen v.Coakley, centering on a First Amendment challenge to a Massachusetts law creating buffer zones around abortion clinics.

    SCOTUSblog publisher Tom Goldstein, who will moderate tomorrow’s ACS Supreme Court Review, said of Noel Canning during live-tweeting at SCOTUSblog this morning:

    Here is the upshot of the decision. The President can make a recess appointment without Senate confirmation when the Senate says it is in recess. But either the House or the Senate can take the Senate out of recess and force it to hold a "pro forma session" that will block any recess appointment. So while the President's recess appointment power is broad in theory, if either house of Congress is in the hands of the other party, it can be blocked.

    Eric J. Segall, the Kathy and Lawrence Ashe Professor of Law at Georgia State University College of Law, also a panelist for tomorrow’s high court review, told ACSblog, “When is a recess not a recess? When it’s less than 10 days. Justices issue a mixed ruling in NLRB v. Noel Canning.”

    Chief Counsel for the Constitutional Accountability Center Elizabeth Wydra in press statement said, “While the Supreme Court voted unanimously to strike down the particular exercise of the Recess Appointments Clause power in the Noel Canning case, more important, the Court – by a sharply divided 5-4 vote – rejected the sweeping arguments made by the U.S. Chamber of Commerce and its allies.” (Wydra is also scheduled to participate in tomorrow’s ACS Supreme Court Review.)

    The U.S. Court of Appeals for the District of Columbia Circuit ruled early last year that President Obama’s appointments to the National Labor Relations Board in early 2012 during “pro forma sessions,” where Congress took deliberate steps to shorten the period for the president to make recess appointments. The president took the action noting that the 5-member NLRB could not function with three languishing vacancies.

  • June 26, 2014
    Guest Post

    by Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Ohio State University, Moritz College of Law. This piece is cross-posted on RegBlog, where it was originially published.

    As losses go, NLRB v. Noel Canning is going to be pretty easy for the National Labor Relations Board (NLRB) and future presidents to live with.

    In a 5-to-4 vote, the U.S. Supreme Court held that Article II’s Recess Appointments Clause empowers presidents to fill vacancies that occur at any time and during any recess—intra-session or intersession—of sufficient length. The Court did invalidate President Obama’s January, 2012, recess appointments of three NLRB members, but only on a narrow two-part rationale. First, a series of pro forma Senate sessions held between December 17, 2011, and January 23, 2012, were effective in dividing this 37-day break into periods of adjournment no longer than three days. Second, periods of intra-session adjournment shorter than 10 days are “presumptively” too short to count as recesses that trigger the president’s recess appointments power. (There is some ambiguity in the majority opinion whether the 10-day rule now applies even to intersession adjournments, which, as far as I know, no party ever argued.) Because of the pro forma sessions – which the D.C. Circuit had not addressed at all – the NLRB owes the Noel Canning Co. a do-over in its unfair labor practice proceeding.

    All in all, it was a good day for the legacy of Chief Justice John Marshall. The majority eschewed implausible claims for the supposed clarity of plainly ambiguous constitutional text, in favor of a constitutional reading that was guided by a history of interbranch practice. Marshall would have approved the Court’s framing of the intra- versus inter-session recess problem:

    The question is not: Did the Founders at the time think about intra-session recesses? Perhaps they did not. The  question is: Did the Founders intend to restrict the scope of the Clause to the form of congressional recess then prevalent, or did they intend a broader scope permitting the Clause to apply, where appropriate, to somewhat changed circumstances? The Founders knew they were writing a document designed to apply to ever-changing circumstances over centuries. After all, a Constitution is “intended to endure for ages to come,” and must adapt itself to a future that can only be “seen dimly,” if at all …We therefore think the Framers likely did intend the Clause to apply to a new circumstance that so clearly falls within its essential purposes, where doing so is consistent with the Clause’s language.

    In short, pragmatism trumped an overconfident textualism.

  • June 25, 2014
    Guest Post

    by Susan Freiwald, Professor of Law, University of San Francisco School of Law

    The Supreme Court faced the specific question in Riley v. California as a matter of first impression – can police search a cell phone’s contents under the “incident to arrest” exception to the warrant requirement?  But several courts have recently established a privacy-protective trend when they addressed the broader question – when does new technology render pre-digital precedents inapposite?  The Supreme Court’s decision fits the trend in two key ways.  First, the Court refused to credit the government’s explanation of the technological challenges it faced, and, instead, relied on its own sophisticated understanding.  Second, the Court recognized the need to evaluate how new technology presents new answers to the inquiries behind the precedents.  Like recent federal appellate cases, and unlike the Court’s decision in United States v. Jones, however, the Riley decision announced a bright line warrant requirement for searches of cell phones that recognized that more nuanced rules would grant law enforcement agents excessive discretion.

    Skepticism towards the government’s arguments about new technology.  In past cases, courts have generally deferred to government lawyers for information about the new technologies agents use and confront in their investigations.  Ex parte litigation and the defense bar’s lack of access has exacerbated an information disadvantage.   For example, the ACLU has recently tried to obtain more information about government use of stingray devices designed to mimic cell towers and obtain location and other personal information.

    In recent cases, however, courts have brought a more jaundiced eye to the government’s claims.  In Riley, the Supreme Court rejected the government’s claim that, without a ruling in its favor, agents would lose crucial information.  Educated by technologists, amici, and academics and other researchers, Justice Roberts explained that agents could merely pop a cell phone in a Faraday bag to protect against remote wiping.  (The opinion does merge encryption with passcode locking).  Nonetheless, the Court’s knowledgeable skepticism reminds me of the Eleventh Circuit’s recent approach to cell site location data in United States v. Davis.  In that case, the court dispensed with the government’s claim that such information is not as invasive as GPS tracking information.  Because phones follow people inside as GPS trackers on their cars do not, the court found even more justification for a reasonable expectation of privacy in cell site location information.   The courts’, and particularly the Supreme Court’s, increased technological savvy represents an important shift. 

    A refusal to “mechanically” extend pre-digital precedents to new technologies.  In past cases, the government has argued that, even though cases involve new technology, they may be easily decided based on prior rules.  The Riley opinion rejected the government’s argument that it could “mechanically” apply the incident-to-arrest exception merely because people carry cell phones the same way they carry cigarette cases.  Instead, the Court reviewed the rationales of protecting officer safety and preserving evidence and determined that neither of them justified the massive privacy intrusion of searching a cell phone without a warrant (at least without exigent circumstances or some other like exception).