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Supreme Court Term 2013-14: Outstanding Cases

by: tmess2

Sun May 18, 2014 at 22:31:22 PM EDT

It's that time of year again.  The Supreme Court is done with arguments and will be spending the next six weeks issuing opinions (as well as finalizing the cases to be heard this fall).  This year, the Supreme Court heard arguments in seventy cases.  So far they have decided forty cases and have thirty remaining.  We will probably get 3-4 opinions per week for the next three weeks at which point the remaining cases will come in a flood (including most of the major cases not yet decided).

Most of the cases from last fall have been decided.  The biggest case remaining (probably being written by Chief Justice Roberts) is in many ways a small case that has become much bigger than it should be.  The case is Bond v. United States back for a second time at the Supreme Court.  The case involves a poisoning, but the local federal prosecutor decided to charge a federal offense under a statute implementing the Chemical Weapons Convention.  By opting to charge a federal offense (rather than letting the state prosecutors handle the case as a state offense), the federal prosecutor has created a major dispute over whether a the US can use a treaty to expand federal power.  The easy out in the case would be for the Supreme Court to narrowly interpret the statute to not reach the charges in this case.  The other two cases from the fall involve the ability of a child to get residence status under U.S. immigrations law if that "child" becomes an adult while on the waiting list and the scope of the federal authority to regulate casinos run by Native Americans if those casinos are located outside of tribal land. 


The winter cases (January and February) are only half-decide (ten cases remaining out of nineteen arguments).  Because of the number of cases remaining, it is too soon to tell which justices might have these cases.  There are still three big cases from January.  The biggest is the Noel Canning case on the scope of the recess appointment power. Whichever side wins may well regret it when, at some point in the future, control of the White House flips.  For now, conservatives are arguing that the President can only fill a vacancy during the recess between the end of the session in the fall of one year and the first meeting of the following session in January and only if the position becomes vacant during that recess.  Also outstanding from January is a case on the Massachusetts law creating a protest-free bubble around abortion clinics and mandatory unionization for home health care providers in Illinois (for the purpose of Medicaid reimbursements. 

The big case from February is the greenhouse gas case.  As noted in previous posts, the Supreme Court rejected most of the challenges to the regulations and is only considering a limited technical issue of statutory interpretation -- does the finding that these gases are pollutants for the purpose of the sections of the Clean Air Act governing motor vehicles also mean that they are pollutants for the sections covering power plants.  The other major case from February is a securities fraud case involving Haliburton (a/k/a the source of all evil).

tmess2 :: Supreme Court Term 2013-14: Outstanding Cases

In contrast to the fall and winter cases, all of the spring cases (March and April) are still waiting for opinions -- seventeen cases in total.  The big case from March is the Hobby Lobby case -- involving whether it violates the free exercise rights of corporation to make them purchase health insurance for their employees if that health insurance must include coverage for contraceptives that the "company" considers to be an abortifacient.  The other major case from March involves the ability to patent certain computer-based processes.  (The Supreme Court has struggled to draw the line between patents and copyrights for software based inventions. 

The most political of the cases from April involves the Susan B. Anthony List (an anti-abortion group).  Ohio law gives its ethic commission the ability to sanction the running of knowingly false ads.  For obvious reasons, conservative groups think that the risk of being called for knowingly making factual misstatements might prevent them from running the ads that they desire to run. To date, there have been no findings that any of the Lists ads actually are knowingly false although some have been investigated.  The List, however, claims that the mere risk "chills" their ability to run the ads that they want to run -- thereby allowing them to challenge the law.  The issue is technically whether the List can challenge the law, but there is a chance that the justices might be unable to avoid commenting on the merits of the challenge.

The other big cases from April involve the justices trying to use old legal tests to deal with new technology -- two cases involving how to apply the Fourth Amendment to cell phones and one involving a copyright protection for internet streaming of television shows.  

The short version of the cell phone cases and that there are a laundry list of rules governing when a warrant is and is not required.  These rules are have been designed to work when the item being searched is luggage or a car or a purse.  The basic question is how these rules need to be altered when the item being searched is not just a phone, but also a data storage device that can store a large amount of confidential information about a suspect but can also be electronically accessed by friends of the suspect to delete that data. 

For the internet television cases, you have two competing models from the existing cases.  One is the cable TV model, holding that a company that rebroadcasts a transmission needs to purchase the right to rebroadcast that transmission.  The other is the VHS model, holding that a person's recording of a show for their own later use is not.  It is now possible to download a television show from a website run by a network and save that show on your own media.  Along comes a company that says -- tell us what show you want to download and we will do it for you to our storage facility for a fee.  You can then come to our site whenever you want to watch the show that you taped.  The question is whether this new type of company is merely like your vhs or dvd or TIVO or is it more like a cable company.  The answer will determine whether companies of this type need to negotiate licenses with the networks (forcing these companies to charge higher fees but preserving the profits of cable companies and the networks) or will be able to gain possession of this content without compensation (making things cheaper for the customers of these companies but potentially disrupting the current business model of the video entertainment industry).    

With the possible exception of the fall cases, it is likely that the next three weeks will see the remaining "non-controversial" cases from the winter arguments and some of the non-controversial cases from March and April.  Starting June 9, however, expect to see the fireworks of 6-3 and 5-4 splits on the major cases including the ones most likely to become bumper stickers for the fall races (Canning, abortion, greenhouse gases, and the Affordable Care Act's contraceptive mandate). 

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