Skip to main content
Menu

Main navigation

  • About
    • Annual Reports
    • Leadership
    • Jobs
    • Student Programs
    • Media Information
    • Store
    • Contact
    LOADING...
  • Experts
    • Policy Scholars
    • Adjunct Scholars
    • Fellows
  • Events
    • Upcoming
    • Past
    • Event FAQs
    • Sphere Summit
    LOADING...
  • Publications
    • Studies
    • Commentary
    • Books
    • Reviews and Journals
    • Public Filings
    LOADING...
  • Blog
  • Donate
    • Sponsorship Benefits
    • Ways to Give
    • Planned Giving

Issues

  • Constitution and Law
    • Constitutional Law
    • Criminal Justice
    • Free Speech and Civil Liberties
  • Economics
    • Banking and Finance
    • Monetary Policy
    • Regulation
    • Tax and Budget Policy
  • Politics and Society
    • Education
    • Government and Politics
    • Health Care
    • Poverty and Social Welfare
    • Technology and Privacy
  • International
    • Defense and Foreign Policy
    • Global Freedom
    • Immigration
    • Trade Policy
Live Now

Blog


  • Blog Home
  • RSS

Email Signup

Sign up to have blog posts delivered straight to your inbox!

Topics
  • Banking and Finance
  • Constitutional Law
  • Criminal Justice
  • Defense and Foreign Policy
  • Education
  • Free Speech and Civil Liberties
  • Global Freedom
  • Government and Politics
  • Health Care
  • Immigration
  • Monetary Policy
  • Poverty and Social Welfare
  • Regulation
  • Tax and Budget Policy
  • Technology and Privacy
  • Trade Policy
Archives
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • October 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • November 2010
  • October 2010
  • September 2010
  • August 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010
  • March 2010
  • February 2010
  • January 2010
  • December 2009
  • November 2009
  • October 2009
  • September 2009
  • August 2009
  • July 2009
  • June 2009
  • May 2009
  • April 2009
  • March 2009
  • February 2009
  • January 2009
  • December 2008
  • November 2008
  • October 2008
  • September 2008
  • August 2008
  • July 2008
  • June 2008
  • May 2008
  • April 2008
  • March 2008
  • February 2008
  • January 2008
  • December 2007
  • November 2007
  • October 2007
  • September 2007
  • August 2007
  • July 2007
  • June 2007
  • May 2007
  • April 2007
  • March 2007
  • February 2007
  • January 2007
  • December 2006
  • November 2006
  • October 2006
  • September 2006
  • August 2006
  • July 2006
  • June 2006
  • May 2006
  • April 2006
  • Show More
May 29, 2014 4:03PM

What We Can Expect from the Supreme Court in the Next Month

By Ilya Shapiro

SHARE

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:

  1. 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.
  2. 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."

Riley (Cato's brief) / Wurie (Cato's brief)

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.

Related Tags
Constitutional Law, Robert A. Levy Center for Constitutional Studies

Stay Connected to Cato

Sign up for the newsletter to receive periodic updates on Cato research, events, and publications.

View All Newsletters

1000 Massachusetts Ave, NW,
Washington, DC 20001-5403
(202) 842-0200
Contact Us
Privacy

Footer 1

  • About
    • Annual Reports
    • Leadership
    • Jobs
    • Student Programs
    • Media Information
    • Store
    • Contact

Footer 2

  • Experts
    • Policy Scholars
    • Adjunct Scholars
    • Fellows
  • Events
    • Upcoming
    • Past
    • Event FAQs
    • Sphere Summit

Footer 3

  • Publications
    • Books
    • Cato Journal
    • Regulation
    • Cato Policy Report
    • Cato Supreme Court Review
    • Cato’s Letter
    • Human Freedom Index
    • Economic Freedom of the World
    • Cato Handbook for Policymakers

Footer 4

  • Blog
  • Donate
    • Sponsorship Benefits
    • Ways to Give
    • Planned Giving
Also from Cato Institute:
Libertarianism.org
|
Humanprogress.org
|
Downsizinggovernment.org