As we head into the last month of the Supreme Court term – the Court releases its final, typically highest profile, opinions the last week of June – it’s time to take a deep breath and survey the lay of the land. Here’s what we can expect in coming weeks as the justices rush to get their final opinions out before heading out on their summer vacation/lecture/exile:
- Currently scheduled opinion-release days are June 2 (this coming Monday), 9, 16, 23, and 30. I’d expect the Court to cut June 30 – I’m sure some of the justices already have travel planned for that week – and add 3-4 more opinion days the weeks of June 9, 16, or 23. Each week’s extra days are typically announced on the Monday of the given week.
- There are 25 cases outstanding, most notably Bond (treaty power, argued in November), Noel Canning (recess appointments, January), McCullen (abortion-clinic buffer zone, January), Harris (forced unionization of home healthcare aides, January), Hobby Lobby/Conestoga Wood Specialties (Obamacare contraceptive mandate, March), Susan B. Anthony List (criminalizing false political speech, April), and Riley/Wurie (cell phone searches, April).
As for how all these cases will turn out, all I can say is that it’s fortunate that I’m not paid for my predictive abilities because I don’t think anyone could make a living doing that. Unlike many Court-watchers, however, I’m happy to go on a limb with my best guesses at what’ll happen:
Bond (Cato’s brief)
This one is likely to come down this coming Monday because it’s the case from the November sitting left (and there are none from October, and only one from December). This one is perhaps the most difficult to gauge of the end-of-termers. The oral argument was all over the place, with the justices not really satisfied with what either Solicitor General Don Verrilli or (Mrs. Bond’s super-lawyer) Paul Clement argued. I don’t think that the government will get a ruling eplaining that a treaty can expand Congress’s powers. The Court is also wary of making sweeping constitutional rulings when it can avoid it, however, so it’s unlikely that Missouri v. Holland will be overruled. The most likely result would be a ruling for Bond on the ground that her prosecution was beyond federal power here. Whether that means Missouri is limited in any way or the ruling effectively applies only to this bizarre case is anybody’s guess. Whatever happens, it’s likely that Chief Justice Roberts will be the lead author because he’s the only one without a majority opinion from the November cases.
Noel Canning (Cato’s brief)
The administration will likely suffer a big, near-unanimous, loss here; the only real question is how broad a rule will the Court announce (the broader, the less unanimous). If I had to bet, I’d say that seven justices will side with the challengers, agreeing with Miguel Estrada, who argued on behalf of amici Republican senators that regardless of the scope of the recess-appointment power, it is the Senate that determines when it’s in recess, not the president. A few justices would likely then join a separate opinion going further, limiting the power to inter-session recesses or to vacancies that arise during recesses. Only Justices Ginsburg and Sotomayor are likely to dissent.
McCullen (Cato’s brief)
The views of Chief Justice Roberts and Justice Kagan seem to be the key ones here; there are clearly four votes to strike down a 35-foot buffer zone and three to uphold it. Kagan seemed taken aback at how large this no-speech, no-entry zone was, encompassing public sidewalks. Roberts seemed to be searching for a practical solution to the problem. But it’s hard to see a Court that in recent terms has struck down laws against funeral protests and violent videogames upholding the law in this context.
Harris (Cato’s brief)
This is one of the very rare cases where Justice Scalia is the swing vote. At oral argument, Justices Alito and Kennedy (and, presumably, the silent Thomas) seem ready to overturn the 1977 case (Abood) that has allowed compelled contributions for certain union activities, with Chief Justice Roberts also on the workers’ side for a different reason. The “liberal” justices, meanwhile, were foursquare on the side of the pro-union Illinois law (which has equivalents in about a dozen other states). Scalia’s main concern seemed to be about how to draw the line between union actions meant to better working conditions – such as collective bargaining – versus other public policy-related activities that state governments can’t force individual workers to support. Given that his is the deciding vote, it’s likely that Scalia will end up writing the majority opinion, which gives all of us more reason to anticipate the Court’s ruling.
Hobby Lobby/Conestoga (Cato’s brief)
There should be about seven votes to reach the merits of this controversy; that is, that someone (whether the privately held corporations at issue or their owners) has standing to challenge the HHS rule requiring employers to cover 4 contraceptives (of 20 on the full list) as part of their Obamacare health insurance. On the merits, it’s more likely than not that the challengers will win because the government hasn’t shown that its mandate is the most narrowly tailored way of achieving a compelling interest – which is what it must do to justify imposing a substantial burden of religious exercise under the law at issue, the federal Religious Freedom Restoration Act. While Justice Breyer appeared skeptical of the government’s position at oral argument, he’ll probably still dissent to prevent the ruling from being six men versus three women.
SBA List (Cato’s hilarious brief)
Ohio’s solicitor general, an excellent attorney put in a difficult position, was met with an incredulous bench at oral argument. I don’t think we’ll see a single vote denying the plaintiff advocacy group standing to challenge a ridiculous law that criminalizes making “false statements” about political candidates. I further predict that, on remand, the district court will strike down this law, the appellate Sixth Circuit will summarily affirm that ruling, and we’ll never hear about the case again except in the context of the “best amicus brief ever.”
The defendant with the smartphone (Riley) will win, while the defendant with the “dumb” (flip) phone (Wurie) will lose – not necessarily due to the difference in technology but because the police’s warrantless search was much more intrusive in the former case than in the latter. How the Court will reach those conclusions I can’t begin to estimate, although I’ll say that the justices are extremely wary of pronouncing legal rules that could be rendered obsolete or unworkable as newer technology develops.
Well, there you have it. Tune in starting Monday at 10am to see what happens in the denouement of the Supreme Court’s October Term 2013. Just remember that these predictions are worth about what you’re paying for them.