Antonin Scalia

Today's Supreme Court Rulings: Limits on Recess Appointments, Buffer Zones at Abortion Clinics

Two more cases left to decide this term


This year's Supreme Court term is set to come to a close soon. Today, the court released two new decisions. The justices have two more rulings yet to release. Here's what happened today:

National Labor Relations Board v. Noel Canning

In a unanimous verdict, the Supreme Court ruled that President Barack Obama bypassed the requirement to seek Senate approval for appointments when he bypassed the body to appoint three members to the National Labor Relations Board (NLRB). Though the president has the power to make appointments during a Senate recess, that technically wasn't the situation here. Reason's Damon Root explains:

The Senate was not in recess at that time. In fact, Senate Republicans were then holding pro forma sessions for the precise purpose of denying Obama a legitimate opportunity to make any and all recess appointments. Obama's actions therefore violated both the text of the Constitution and the separation of powers between the executive and legislative branches of the federal government.

Today, by a vote of 9-0, the U.S. Supreme Court struck down Obama's unconstitutional overreach in National Labor Relations Board v. Noel Canning. "In our view," declared the majority opinion of Justice Stephen Breyer, "the pro forma sessions count as sessions, not as periods of recess." Therefore, "We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is."

The majority ruling was narrowly worded, though. Justice Antonin Scalia wrote a concurring opinion that would have put further restrictions on the president's ability to name recess appointments. Root again makes note:

Justice Antonin Scalia, joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, went much further … . The Recess Appointments Clause, Scalia argued in his concurring opinion, "cabins" the president's power in two ways. "First, it may be exercised only in 'the Recess of the Senate,' that is, the intermission between two formal legislative sessions. Second," Scalia continued, "it may be used to fill only those vacancies that 'happen during the Recess,' that is, offices that become vacant during that intermission. Both conditions are clear from the Constitution's text and structure, and both were well understood at the founding."

McCullen v. Coakley

The Supreme Court also unanimously ruled that a Massachusetts law that created a 35-foot buffer zone around abortion clinics to prohibit protests was an unconstitutional violation of First Amendment rights. From the Associated Press:

Chief Justice John Roberts said authorities have less intrusive ways to deal with problems outside the clinics and noted that most of the problems reported by police and the clinics occurred outside the Planned Parenthood facility in Boston, and only on Saturdays when the largest crowds typically gather.

"For a problem shown to arise only once a week in one city at one clinic, creating 35-foot buffer zones at every clinic across the Commonwealth is hardly a narrowly tailored solution," Roberts said.

While the court was unanimous in the outcome, Roberts joined with the four liberal justices to strike down the buffer zone on narrow grounds. In a separate opinion, Justice Antonin Scalia criticized Roberts' opinion for carrying forward "this court's practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents."

Roberts noted in his ruling that other states have found ways to tailor the laws to protect patients of these clinics from harassment without creating such broad laws. From Politico:

Buffer zones elsewhere in the country tend to be smaller, specifying distances such as 8 feet or 15 feet. The justices did not establish what distance would be acceptable but made a veiled suggestion that a smaller space would be legal in Massachusetts.

"If the Commonwealth is particularly concerned about harassment, it could also consider an ordinance such as the one adopted in New York City that not only prohibits obstructing access to a clinic, but also makes it a crime 'to follow and harass another person within 15 feet of the premises of a reproductive health care facility,'" Roberts wrote, adding that the ruling is not necessarily a stamp of approval on that municipal law.

What's left for the Supreme Court

On Monday, the Supreme Court is likely to release its decision for its final two cases. The major case getting the most attention is Sebelius v. Hobby Lobby Stores, Inc. The Affordable Care Act requires most employers to cover the cost of birth control in their health plans. Hobby Lobby, a family-owned chain of craft stores, objects on religious grounds being forced to fund forms of birth control with which it has moral concerns.

Getting much less attention is Harris v. Quinn. The state of Illinois has forced individual homecare workers to accept union representation through the Service Employees International Union (SEIU) and pay them union dues. Many of these "workers" are family members taking care of relatives and getting subsidies from Medicaid. Some of these workers sued, saying forcing them to accept SEIU representation is a violation of their rights of free speech and free association.

Reason will cover both rulings when they are announced.