SCOTUS Watch: Big Rulings on Executive Power, Police Power, and Obamacare Coming Soon


Credit: Librar of Congress

It's coming down to the wire at the U.S. Supreme Court. With less than three calendar weeks remaining before the justices depart for their summer break, 17 cases are still undecided. Among them are several of the term's biggest potential blockbusters, including major showdowns over executive power, police power, political speech, and the 2010 Patient Protection and Affordable Care Act. Here's a rundown of the cases to watch as the Supreme Court's 2013-2014 term comes to a close.

National Labor Relations Board v. Noel Canning

The Constitution allows the president to make temporary appointments to fill vacant government offices when the Senate is in recess and is thus unavailable to provide the "advice and consent" mandated by the Constitution. Yet President Barack Obama flaunted that rule by making three "recess" appointments to the National Labor Relations Board when the Senate was not—according to its own rules—in recess. In fact, the Senate was then holding pro forma sessions for the very purpose of preventing Obama from making any and all recess appointments. According to the U.S. Court of Appeals for the District of Columbia Circuit, which ruled against the Obama administration in January 2013, Obama's approach "would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law." Judging by the recent oral argument, a majority of the Supreme Court may well agree with that assessment.

Sebelius v. Hobby Lobby Stores, Inc.

The Patient Protection and Affordable Care Act of 2010 contains a provision commonly known as the contraceptive mandate. It requires most employers to cover birth control in their health care plans. Churches, however, are exempted from that requirement, and church-affiliated institutions, such as Catholic hospitals, are granted an accommodation. Hobby Lobby Stores, Inc., a family-owned chain of arts and crafts retailers, says it also operates according to religious values, and should therefore not be forced to cover four methods of birth control that it deems tantamount to abortion. The Obama administration, by contrast, maintains that for-profit corporations should never be allowed to mount a free exercise challenge to a federal statute. During oral argument, however, that argument by the White House met with fierce resistance from the Court. "Take five Jewish or Muslim butchers," Justice Stephen Breyer told Solicitor General Donald Verrilli. "What you're saying to them is if they choose to work under the corporate form," they lose access to the Free Exercise Clause. "Looked at that way," Breyer continued, "I don't think it matters whether they call themselves a corporation or whether they call themselves individuals."

Susan B. Anthony List v. Driehaus

It's a criminal offense in the state of Ohio to make "false statements" about political candidates. Who gets to decide what counts as false? A state agency, that's who. And that agency is staffed with political appointees wielding the power to silence their political enemies. The Susan B. Anthony List, a conservative anti-abortion group, would like to challenge this law on constitutional grounds. But a lower court threw out the case, arguing that the group lacked standing to sue, despite the fact that Susan B. Anthony List had already been hauled before the Ohio Elections Commission and accused of violating the law, suffering what our legal system normally recognizes as a justiciable injury. During oral argument, a majority of the Court appeared ready to give the conservative group its day in court. "Don't you think," Justice Anthony Kennedy told Ohio State Solicitor Eric Murphy, "there's a serious First Amendment concern with a state law that requires you to come before a commission to justify what you are going to say and which gives the commission discovery power to find out who's involved in your association, what research you made, et cetera?"

Riley v. California and United States v. Wurie

The Fourth Amendment protects our "persons, houses, papers, and effects, against unreasonable searches and seizures." There are, however, a few exceptions. For example, when the police place you under arrest, they don't need a warrant to search you for weapons or evidence. But what about the cellphone that you may be carrying in your pocket at that time? May the police also conduct a warrantless search of that phone, including the many private emails, messages, photos, videos, and GPS tracking data it undoubtedly contains? These two cases raise those very questions. According to the Obama administration, which has taken the side of aggressive law enforcement, "Although cell phones can contain a great deal of personal information, so can many other items that officers have long had authority to search, and the search of a cell phone is no more intrusive than other actions that the police may take once a person has been lawfully arrested." During oral argument, however, several justices appeared deeply troubled by the implications of that position. "Take an offense like failing to buckle up, even driving under the influence," observed Justice Ruth Bader Ginsburg to California Solicitor General Edward Dumont. "It's your rule…that the cell phone is fair game no matter what the crime, no matter how relatively unimportant the crime." That, Ginsburg stressed, "opens the world to the police."