The U.S. Supreme Court began hearing cases last October. Although decisions could take until late June, here are some key cases to watch:
1. President Recess Appointments: National Labor Relations Board v. Noel Canning.
In answering whether President Obama had the authority to make so-called “recess appointments” of people to the National Labor Relations Board during “pro forma” sessions of the Senate in which no business was to be conducted in January 2012, the D.C. Circuit Court of Appeals held that he did not.
In a broad ruling, the judges said that the Constitution’s “recess appointment” clause — which allows presidents to fill vacancies temporarily that otherwise would need Senate approval during Senate recesses — only applies to the “intersession” recess between sessions of Congress and not “intrasession recesses” taken during a session of Congress. Although that opinion could have found against Obama’s decision on a more limited reasoning that the Senate was not actually recessed during a time when it held “pro forma” sessions, the D.C. Circuit issued the broader reasoning in its ruling.
The justices took the case and, if the D.C. Circuit’s reasoning becomes the law of the land, could create a significant change in the way nomination battles are fought in D.C.
2. Campaign Finance “Aggregat” Limits: McCutcheon v. Federal Election Commission.
Justices will consider whether “aggregate” limits faced by political donors are constitutional. Beyond the normal contribution limits, the aggregate limits — $48,600 to candidate committees and $74,600 to non-candidate committees like political parties — are limits on overall contributions to any federal candidates or non-candidate committees within an election cycle.
The Federal Election Commission argues that there has been a different standard applied to contributions than to campaign expenditures since the Supreme Court upheld the post-Watergate federal campaign finance law. Shaun McCutcheon and the Republican National Committee, with support from campaign finance restriction foe Sen. Mitch McConnell, say that distinction should be tossed out by the court or, at least, should nonetheless mean the aggregate limit is unconstitutional.
A broad array of groups has argued in support of the limits, and Public Campaign released a report showing how eliminating the limits would, primarily, benefit wealthy, white men. In the shadow of Citizens United, though, supporters of campaign finance restrictions are nervous. As law professor Rick Hasen has written, given the other members of the court, “Liberals have to hope [Chief Justice John] Roberts will show some restraint.”
3. State Affirmative Action Bans: Schuette v. Coalition to Defend Affirmative Action.
upreme Court will hear the latest in a long and divisive run of affirmative action cases. In the court’s last term, it made clear that institutions that choose to use any form of affirmative action in higher education admissions need to show, under the tough “strict scrutiny” standard, that the plan is necessary to create a diverse student body. Now the court is considering the other side of that question: Does it violate the Constitution’s guarantee of equal protection when a state bans such considerations in public-university admissions across the state through a constitutional amendment?
Justice Elena Kagan is not participating in the case, but a 4-4 decision would mean the Sixth Circuit’s decision holding the ban unconstitutional would stand, so supporters of the amendment need at least five votes to uphold the amendment. The opponents of the amendment argue, in part, that the “political restructuring” of banning race and sex considerations by amendment limits considerations of those factors in a way that no other factor is limited and, as such, is unconstitutional. Proponents say, to the contrary, that this amendment is, by its terms, nondiscriminatory and could never violate the Constitution.
If the ban is upheld, as many observers expect, expect the foes of affirmative action to turn their attention to forcing other states to follow, and to further limit the scope of affirmative action.
4. Reproductive Health Clinic Buffer-Zone Law: McCullen v. Coakley.
In its 2013 decision upholding the Massachusetts law that bans anti-abortion protesters — that is, anyone other than employees, police, and others with a reason to be there — from entering a 35-foot “buffer zone” around the entrance and exits of such facilities, the 1st Circuit judges were clearly frustrated with the challenge: “This case does not come to us as a stranger.”
“The plaintiffs have also marshaled other recent Supreme Court cases in their ambitious effort to reinvent First Amendment doctrine,” Judge Bruce Selya wrote of the First Amendment arguments put forth by opponents of the buffer zone. “For present purposes, it suffices that these decisions, by no stretch of even the most fertile imagination, sully either the reasoning or the doctrinal infrastructure of [the court’s earlier decision upholding the law].” Now however, the Supreme Court will examine whether the law is different from a 2000 decision upholding a Colorado buffer zone and, more broadly, whether that decision should be limited or overruled.
5. Scope of The Fair Housing Act: Mount Holly v. Mt. Holly Gardens Citizens in Action.
The question before the justices with regards to the New Jersey town of Mount Holly is very direct: Can so-called claims about unintentional discrimination still be violations of the Fair Housing Act? Those so-called “disparate impact” claims are raised in those circumstances in which racial or other discrimination may not have been the purpose of a given rule or policy but in which the effect of the rule or policy “disproportionately affects or impacts one group more than another,” as the Third Circuit Court of Appeals held in finding that the Fair Housing Act can be violated by a policy with such a “disparate impact.”
The Supreme Court took the case, and part of the underlying question the justices will consider is whether it should defer to the Housing and Urban Development Department’s policy that such “disparate impact” cases are allowed under the law.