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Supreme Court Update

by: tmess2

Sun Jan 12, 2014 at 10:47:24 AM EST

On Friday, the Supreme Court returned from its annual extended winter-break with its first conference of 2014.  January at the Supreme Court marks a transition between the first "quarter" of its term to the second quarter.

In the first quarter, the Supreme Court is primarily hearing arguments in cases and deciding what cases to hear for the remainder of the term.  With Friday's grant of review to eight cases for the April argument docket, the April docket will probably have more cases than the February docket.  In the first quarter, opinions are issued in only the most clean cut cases.  (Of the six opinions issued on cases argued in October, November, and December, all six were 9-0 decision with only two concurring opinions -- five from October and one from November).

In the second quarter, in addition to hearing arguments on the remaining cases, the Supreme Court begins to issue opinions in some of the semi-controversial cases and begins granting cases for the following term. 

As far as cases from the fall that still have not been decided, there are several potentially big cases.  From October, the Justices are still working on their opinions in McCutcheon (the challenge to the "aggregate" limits that individuals can contribute to all federal candidates combined) and Schuette (the challenge to the Michigan state constitution ban on affirmative action).  From November, the case generating the most media interest is Galloway (the challenge to the opening prayer at town council meetings).  Finally, from December, the big cases are probably EME Homer City Generation (a challenge to the EPA rules for calculating the interstate impact of pollution and regulating polluters when they contribute to pollution problems in near-by metropolitan areas) and Lozano (the second case in recent years to interpret a provision of the Hague Convention on Child Abduction, this time looking at whether the time for raising a claim is tolled if the abducting parent hides the child).

With new arguments starting on Monday, January is going to be a big docket with 12 arguments on five days.  The biggest case is probably the Noel Canning case involving the rules governing recess appointments.  This case was even bigger before the recent de facto change to the filibuster rules, but given that there will be times when the White House and Senate are controlled by different parties, this case will still be significant. 

The other big case in January is McCullen v. Coakley.  This case involves a challenge to a Massachusetts law creating a buffer zone around abortion clinics.  This law creates a larger buffer zone than has previously been approved by the Supreme Court.  While technically a First Amendment case, this decision will be the first implicating abortion rights since the 2007 decision upholding the federal ban on partial birth abortions.  Given what is in the pipeline, it is unlikely that the Supreme Court will go another seven years without hearing a case on abortion.

Two cases that may become big are United States v. Quality Stores and Paroline v. United States.  Quality Stores raises the question of whether severance packages are subject to Social Security taxes.  Given the current cap on income subject to Social Security taxes, this case is not as big as it could be.  If that cap were lifted as part of Social Security reform, this case could be huge.  Paroline involves the calculation of restitution for victims of child pornography. The issue is the degree to which the victim has to show that her damages are caused by the individual defendant (typically someone who downloaded a handful of photographs as opposed to the actual producer).  

tmess2 :: Supreme Court Update

In February, the Court will only hear seven arguments on six days.  However, one of these seven arguments is the consolidated case involving the EPA's "triggering" rule for its climate change/greenhouse gas regulations.  The issue in the case is actually very narrow as the Supreme Court declined to hear most of the challenges to these regulations (including a challenge to the science supporting the regulations).  On the other hand, the challenge to the triggering rule is potentially very broad.  For most of its history, the EPA has treated a finding that a pollutant should be regulated for mobile sources (e.g. automobiles, commercial motor vehicles) as eliminating the need for a separate finding before also regulating that pollutant for stationary sources (e.g. factories, power plants).  This case challenges that historical interpretation of the Clean Air Act by the EPA and requests that the Court hold that the EPA has to make separate findings (under a different standard) before it can also regulate a pollutant (here greenhouse gases) for stationary sources.

March has even fewer arguments -- six arguments on six days.  However, as in February, one of the arguments is extremely major -- the challenge to the contraceptive coverage requirement in the Affordable Care Act.  There are two separate challenges in these consolidated cases. 

The first challenge is a First Amendment Free Exercise claim.  While the Supreme Court's jurisprudence is a little murky on this claim, the most recent precedents should favor the Obama Administration.  Under that case law, the Administration wins if it can show that the requirement is a law of general application and that it is merely refusing to grant an exemption to that general law. 

The second challenge is based on the Religious Freedom Restoration Act (RFRA).  The RFRA was passed by Congress in response to the Supreme Court's Free Exercise decisions.   While the Supreme Court has held that the part of the RFRA that restricts state governments exceeded the authority granted Congress by the Fourteenth Amendment, the part that restricts the federal government remains intact.  Under the RFRA, "persons" are entitled to an exemption from federal law if that law "substantially burdens"  their free exercise of religion unless the law is supported by a compelling interest and is narrowly-tailored to achieve that interest.

A potentially complicating factor in both of the consolidated cases is that the "person" seeking to exercise their religious freedom is a corporation -- with the stockholders/management asserting their personal religious beliefs as the corporation's religious beliefs.  While it is clear that a corporation has interests that might give it free speech rights, it is unclear that a corporation (a fictional creation of secular law) can have religious beliefs.  It will also be interesting, given the current federal interpretation of the mandate to include contraceptive coverage, how the Supreme Court will give content to substantial burden as that is also the current standard in abortion rights case.  If the Supreme Court is consistent (always debatable) a broad definition of substantial burden for RFRA cases could be used to strike down many recent regulations of abortion, but a narrow definition could allow the Supreme Court to uphold some of those regulations. 

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Aereo (0.00 / 0)
The case I'm interested in is the Aereo case. Yes, I know the Executive Powers case is more important, and other things are more political....but I want Aereo. I want a level playing field. I want big media/communications to be told that they can't turn public broadcasting into pay per view.  

Argument date (0.00 / 0)
They have not yet posted the April argument docket, but since Aereo was on Friday's grant list, it should be on the April argument docket unless one of the party's has a really good reason why they need more time to brief it. 

I know it wasn't there... (0.00 / 0)
When I heard about Aereo in NY, I wanted it. THEN. When they announced the 2013 cities, Philadelphia was on the list, and I signed up. And then crickets. I feel like a whiny kid.

[ Parent ]
April Docket Posted (0.00 / 0)
Aereo is on the April docket.  Apparently Justice Alito is recused on Aereo (and on the following weeks Limelight case).  I do not know why.

[ Parent ]




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