Monday round-up
on Jun 30, 2014 at 6:11 am
Believe it or not, the end is almost here. Today the Justices are scheduled to issue orders from their June 26 Conference at 9:30, followed by opinions in argued cases at 10 a.m. We will start our live-blog coverage at 9:15 a.m.
There are only two undecided cases left. Perhaps the most eagerly anticipated decision of the Term is expected to come in one of them: Burwell v. Hobby Lobby, the challenges to the Affordable Care Act’s “contraception mandate.” At CNN, Bill Mears previews the issues in the case and its possible implications; in separate stories for CNN (here and here) Mears answers five questions about the case and profiles one of the families at the heart of the challenges. At Talking Points Memo, Sahil Kapur also looks at how the Court could rule in the case.
The Court has also not yet ruled on Harris v. Quinn, in which the Court is considering whether a group of home health care providers who work for the state of Illinois can be required to provide financial support to a union that represents them. Sahil Kapur previews the decision at Talking Points Memo, describing it as “a landmark case that unions fear could deal a fatal blow to their movement.” At PrawfsBlawg, Matt Bodie considers how the decision in Harris might play out if, as many people believe, Justice Samuel A. Alito writes for the Court.
Coverage of last week’s decision in National Labor Relations Board v. Noel Canning, in which the Court unanimously deemed unconstitutional the president’s recess appointments to the NLRB, comes from Sahil Kapur of Talking Points Memo, who discusses the decision generally in one post and in another observes that the decision “has dramatically raised the stakes in the battle for control of the Senate”; and from Kristina Peterson and Jess Bravin for The Wall Street Journal’s Washington Wire, who also focus on the decision’s effect on the dynamic in the Senate. Commentary comes from Mark Tushnet at Balkinization, who uses the case as an example of “the political dynamics of constitutional law,” and from Steven Bernstein at Fisher & Phillips, who writes that the “decision has broad ramifications for the employers involved in the invalidated cases (all of which must now be re-decided), and on the Board’s ability to maintain focus on a pro-labor agenda over the course of this year.”
Also last Thursday, in McCullen v. Coakley, the Court unanimously struck down a thirty-five-foot buffer zone outside abortion clinics in Massachusetts. I covered the case in Plain English for this blog on Friday. At PrawfsBlawg, Howard Wasserman discusses the Court and alleged inconsistencies in its First Amendment jurisprudence in the context of “speech-protective” decisions like McCullen. Also at PrawfsBlawg, Hadar Aviram uses the decision as an example of how different cultures handle confrontational speech, while in The New Republic Yishai Schwartz argues that “[t]he real loser in . . . [the] decision is not Massachusetts, nor is it even abortion activists. It’s the police.”
Other coverage and commentary focused on last week’s decision in Riley v. California, in which the Court held that police must obtain a warrant before they can search the cellphone of someone whom they have arrested. At PrawfsBlawg, Dan Markel reproduces a post by Rachel Harmon, who “note[s] the Court’s odd support for one of its statements about policing, and the pathetic state of information about policing it reveals.” At Crime and Consequences, Kent Scheidegger agrees with the Court that “[t]he asserted justifications for searching the phone immediately without a warrant are weak,” but he adds that “[t]he Fourth Amendment should not be a ground for excluding evidence from a criminal trial unless the police acted in bad faith. Admissibility should be the general rule and exclusion the exception.” Other analysis of the decision comes from Zachary Smith, who at his eponymous blog characterizes the opinion “as a strong ruling in favor of the search warrant ‘requirement,’ not to mention privacy protection.”
Still more coverage of last week’s decisions focuses on American Broadcasting Cos. v. Aereo, in which the Court held that the Internet start-up Aereo violated the Copyright Act when it sold its subscribers a technologically complex service that allows them to watch television programs over the Internet at about the same time as the programs are broadcast over the air. At the Brookings Institution, Stuart Brotman looks at the winners and losers from last week’s decision, while at Hamilton and Griffin on Rights Courtney Soliday praises the dissent by Justice Antonin Scalia, arguing that Scalia “addressed the appropriate remedy, which is to apply the law as it stands and leave to Congress the task of deciding whether the Copyright Act needs an upgrade.”
Briefly:
- In an op-ed for The New York Times, Neal Katyal discusses the Court’s recent unanimous opinions, arguing that such unanimity “is important because it signals that the justices can rise above their differences and interpret the law without partisanship.”
- At his Harmless Error blog, Luke Rioux has an overview of last week’s news at the Court and looks ahead to this week’s decisions.
- At Balkinization, Mark Tushnet suggests that “this Term a number of Justices have become (more) willing to take on Justice Scalia’s sharp rhetoric,” and he wonders whether “this reflects something new in the Court’s internal” dynamics.
- At PrawfsBlawg (cross-posted at Re’s Judicata), Richard Re compiles a list of law review articles cited in recent Supreme Court opinions.
- At CNN, Bill Mears surveys the state of same-sex marriage laws, one year after the Court struck down the federal Defense of Marriage Act.
- In The Wall Street Journal (subscription required), Jim Carlton reports on the case of Drakes Bay Oyster Co. v. Jewell, which the Justices considered at their Conference last week.
- At Slate, Judge Richard Posner discusses the Court, the role of the Chief Justice, and the opinion of Chief Justice John Roberts in McCutcheon v. FEC, striking down aggregate limits on campaign contributions.
- At the Dungan Law blog, James Kilbourne reports on legislation in North Carolina intended to respond to the Court’s recent decision in CTS Corp. v. Waldburger, in which the Court held that North Carolina’s statute of repose is not preempted by the federal Superfund law.
- At his Election Law Blog, Rick Hasen explains (responding to another commentator) that there is indeed a circuit split on the question of same-sex marriage, which in his view “marginally increases the chances that the Supreme Court will take” up the issue next Term.
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