WASHINGTON—The new Supreme Court session, 2013-2014, may be even as groundbreaking as it was in the last term. Before the High Court are cases involving affirmative action, abortion protests, campaign finance, fair housing, and recess appointments.
Of course, the hearings for these cases, and many more on the docket, assume that a government shutdown for a protracted period doesn’t bring to a halt the work of the highest court of the land.
On Sept. 25, a distinguished panel discussed the upcoming Supreme Court term and provided a preview of the cases that have the most significance to the public. The annual event was co-sponsored by the American Bar Association Division for Public Education and the Woodrow Wilson Center.
Banning Affirmative Action
As it did in the 2012-2013 term, the Court will decide a controversial case regarding affirmative action.
Schuette v. Coalition to Defend Affirmative Action involves whether a state can pass a constitutional amendment banning affirmative action or preferential treatment “in public education, government contracting, and public employment based on race, sex, ethnicity, or national origin,” wrote Mark Cohen in the American Bar Association’s Preview of the United States Supreme Court Cases.
Michigan voters passed such an amendment. However, it was overturned by the Sixth Circuit Court of Appeals as placing a special burden on minorities seeking to achieve equality and thus violating the Fourteenth Amendment.
The Court will hear the case Oct. 15. At stake is whether states can pass constitutional amendments that ban affirmative action.
Public Prayer
A major church/state case is about prayer recitation in the town of Greece, New York, near Rochester. Since 1999, their town council meetings begin each session with a prayer, according to Stephen Wermiel, from American University Washington College of Law. The majority of those offering the prayer were Christian. The policy has allowed anyone of any denomination to recite the opening prayer and the policy does not dictate the content of the prayer.
In Town of Greece v. Galloway, the town prayer is challenged by two local residents for violating the Establishment Clause in the First Amendment and the circuit court agreed. The rationale was that (1) the town was favoring Christianity and (2) the very content of a prayer is very religious, said Wermiel, who is the Supreme Court correspondent for the Wall Street Journal.
The other side is that blessing the legislative session is a tradition going back 200 years, starting with the first Congress. Is it really coercive? The Obama administration is siding with the town.
At stake is how far to take the Establishment Clause. Does it mean total separation of religion from state affairs or can a prayer be given at a public meeting without violating the principle of church/state separation?
There is considerable interest in this case. It will be heard Nov. 6. Lots of legislators, counties, and states have filed amicus briefs, said Wermiel.
Presidential Power
The National Labor Relations Board v. Canning involves the president’s power to make recess appointments. The Constitution grants the president the power to appoint senior federal officials, who would normally be confirmed by the Senate, when the Senate is in recess. When the Senate reconvenes, it can confirm the president’s appointment. Otherwise, the appointment lasts until the end of the session.
Presidents since the beginning of the republic have used their recess appointment power when they couldn’t get Senate approval for a nominee. Several nominees for important federal positions have languished for months and years because the president’s opposing political party blocks any vote. It is true in the Obama administration and it was true in the Bush administration.
A lower court narrowly construed the president’s powers to make recess appointments. It ruled that the president’s power to make recess appointments is valid only between sessions. The High Court will have to determine whether the president can make a recess appointment within a session of the Senate.
Also, the lower court ruled narrowly again that the president could only exercise the powers of recess appointments to fill positions that emerge during that recess. The High Court will determine whether the president can make recess appointments that become vacant any time—perhaps months or years ago—and when the Senate is not in recess.
The Court invalidating the NLRB recess appointments could put at risk hundreds of decisions that the NLRB made, said Renée Landers, professor of aw at Suffolk University Law School.
However, “The Court is reluctant to upset the decisions that were taken by the agencies even though the appointments of the officials are subsequently invalidated by the Court,” she said.
Campaign Finance
Shaun McCutcheon, an Alabama businessman and a Republican donor, wants to contribute more than the $123,000 to candidates and political committees, which is the cumulative cap allowed every two years set by federal law. The Republican National Committee is supporting the brief.
Wermiel said the law in question is from the first campaign finance law, which set a two-year cumulative cap on contributions to federal campaigns. The caps are $74,000 in two-year cycles to non-candidate committees, including political parties, and roughly $48,000 to candidate committees.
The Court will have to decide in McCutcheon v. Federal Election Commission whether the cumulative limits are a violation of political speech. If it so rules, it would be the most significant campaign finance decision since Citizens United. The hearing is set for Oct. 8.
The case is not about limits on “what a donor can give to a candidate directly or to campaign committee or party,” wrote Lyle Denniston in SCOTUSblog. It’s about the aggregate, “the total amount that a donor can give to all political recipients during a two-year election cycle,” wrote Denniston.
Most people don’t even know this law exits, said Wermiel, because they are not big donors.
David Savage, who covers the Supreme Court for the Los Angeles Times, added that overturning the law would permit cumulative limits of $3.6 million in two-year cycles.
Abortion Protests
In McCullen v. Coakley, anti-abortion protesters are challenging a Massachusetts’s law passed in 2007 that prohibits them from speaking on a sidewalk or public way within 35 feet of an entrance, exit, or driveway of “a reproductive health care facility.” The circuit court upheld the law.
The protesters may want to counsel persons entering the clinic. Other speakers—employees and persons who have business to conduct are not excluded from this “buffer zone.”
The protesters say the 35 feet rule violates the First Amendment because it denies them the right to speak in the buffer zone to clients entering the clinic but allows speech for the employees, explained Wermiel.
Wermiel stated the essence of their argument as follows: “It does not allow them a way to get their message across. They want to do face-to-face counseling to the people seeking abortion, and you can’t do that if you have to stay 35 feet away.”
Landers said other people’s rights were involved in this case, namely the right to enter the abortion clinic without “unnecessary impediments and interference in exercising that right.”
Supreme Court justices met privately on Monday in their first conference since summer recess. The new term is scheduled to open on Monday, Oct. 7, however, a government shutdown could affect the business of the Court.
The Court issued a statement that it will conduct business and its building will remain open until at least Friday Oct. 4, even if most of the federal government shuts down on Oct. 1. In the event that the budget crisis is not resolved by Oct. 4, the Court stated on its website that it will announce then what it plans to do.
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