There is about a month remaining before the end of the Supreme Court’s current term, which is expected to be at the end of June. The Roberts Court has already done great damage in the cases it has decided so far. The far-right’s ruling in McCutcheon v. FEC drove another dagger into the heart of our democracy by empowering the wealthiest and most powerful among us to exercise even more control over our election. Town of Greece v. Galloway continued the arch-conservatives’ goal to undermine the constitutionally mandated separation of church and state.
But there are many important cases remaining to be decided over the next several weeks. Depending on how the Court rules, the entrenched power imbalance already harming our democracy could be significantly worsened.
Recess appointments and sabotage of the executive branch: NLRB v. Noel Canning.
This case has the potential of completely remaking the president’s recess appointment authority from how it has been understood and exercised since the 1800s. The recess appointment power has long been used by presidents of both parties during all kinds of recesses, not just those occurring annually between sessions of Congress. And it has always been used to fill vacancies regardless of when those vacancies first became open. But that may soon change.
It’s important to note that this case arose out of far-right conservatives’ efforts to nullify laws they don’t agree with. In this case, the laws in their crosshairs were those protecting workers, which they sought to undermine by preventing the National Labor Relations Board from having enough members to conduct business. Specifically, Republicans blocked the Senate from holding confirmation votes on President Obama’s nominees to the NLRB, finally provoking him to make recess appointments in January of 2012. This was during a vacation period when the Senate was meeting for pro forma sessions for a few minutes every few days, a practice that came about for the specific purpose of preventing recess appointments.
The Supreme Court has been asked to answer several questions: (1) Can a recess appointment be made only during the recess between two sessions of Congress (which occurs once a year and can last only a split second), or can it be made during any recess? (2) Can the Senate use pro forma sessions to turn what would otherwise be a recess into a non-recess, thereby preventing recess appointments? (3) Is a recess appointment limited to those vacancies that first became open during the same recess during which the appointment is made?
Attacks on public sector unions: Harris v. Quinn.
This case is about home care personal assistants (PAs) in Illinois, who provide in-home care under two of its Medicaid programs to people with disabilities and other health needs. But it has the potential, should the Roberts Court wish, to deliver a crippling blow to public sector unions nationwide.
Illinois PAs are classified as state employees for the purposes of collective bargaining and work under a common “agency shop” agreement: If the employees in a particular group choose to have a union represent them, the government employer recognizes that union as their exclusive representative. When the union carries out its collective bargaining functions, it does so on behalf of all the employees, regardless of whether they actually join the union. Members pay dues to support this activity on their behalf. To prevent “free riding,” the law requires non-union members to pay their fair share to support the basic collective bargaining activities being done on their behalf, but not to support non-collective bargaining activities such as political campaigning with which they might disagree.
The Supreme Court has long recognized that such arrangements for public employees are consistent with the First Amendment, dating back to a 1977 case called Abood v. Detroit Board of Education. But that precedent is threatened in this case as petitioners – backed by the anti-worker National Right to Work Legal Defense Foundation – call for the Roberts Court to overrule Abood. According to the PAs who brought this case, the arrangement violates their First Amendment freedom to choose with whom to associate. They also claim that exclusive representation violates their right to petition the government on matters of public policy, since the subject of their negotiations is the functioning and budgets of state Medicaid programs.
As Justice Kagan noted during oral arguments, this “would radically restructure the way workplaces across this country are run,” imposing so-called “right to work” regimes on all public employment throughout the United States. In so doing, it would substantially drain the coffers of public sector unions, which has been a longtime political goal of conservative extremists.
Unfortunately, the far-right Justices on the Roberts Court have already demonstrated their eagerness to join in the political attack on workers. Two years ago, in Knox v. SEIU (another case involving public sector unions), they severely undercut another longtime precedent that had enabled public sector unions to protect workers’ rights by deciding an issue that wasn’t before them, ruling against the union on an issue that it had not even had a chance to argue. As Justice Sotomayor pointed out in her dissent, the majority was acting in violation of the Court’s own rules to achieve this result. Whether they will show a similar eagerness to undercut public sector unions remains to be seen.
Corporate religious liberty rights: Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corp. v. Sebelius.
These cases have the potential to give religious liberty rights to for-profit corporations, and to empower their owners and managers to ignore laws on health insurance coverage, employment discrimination, and other areas based on their religious beliefs.
Under the Affordable Care Act and HHS guidelines, employers generally have to provide certain preventive health services, including FDA-approved contraception, to women employees. The cases challenging this requirement involve several companies and their owners. Conestoga Wood is a for-profit corporation with 950 employees, owned by members of the Hahn family. Hobby Lobby is an arts and crafts chain store with over 500 stores and about 13,000 full-time employees, owned by members of the Green family. The Greens also own a corporation called Mardel, a chain of 35 for-profit Christian bookstores with about 400 employees.
The Greens and the Hahns have religious-based opposition to the use of some of the contraceptives covered by the law. They claim that the law violates not only their own religious freedom, but also the religious freedom of the large for-profit corporations they run. The primary law at issue in the cases is the Religious Freedom Restoration Act (RFRA), enacted in 1993. Under RFRA, a federal law cannot “substantially burden a person’s exercise of religion” unless it advances a compelling government interest in the least restrictive manner.
A key question for the Justices is whether a for-profit corporation is a “person” covered by RFRA. Unsurprisingly, before this litigation, no court had ever found that for-profit corporations have religious liberty interests either under RFRA or under the First Amendment. Yet a divided Tenth Circuit ruled for Hobby Lobby: They concluded that since corporations have First Amendment political speech rights under Citizens United, it follows that they also have First Amendment religious rights, and that RFRA should be interpreted to include them as “persons.” As PFAW Foundation Senior Fellow Jamie Raskin has written, “the outlandish claims of the company involved would not have a prayer except for Citizens United, the miracle gift of 2010 that just keeps giving.”
The next question is whether the coverage requirement is a substantial burden on the families’ (and possibly corporations’) exercise of religion, even though they are not forced to use or administer the contraception, or to affirm that they have no religious objection to it. Since the ones providing the health insurance are the corporations and not the individual owners, a ruling in favor of the owners would have implications for a concept basic to American law: that a corporation is a legally separate entity from its owners.
If the Justices find a substantial burden on the corporations or their owners, then they will determine if the government interest (furthering women’s health and equality) is a compelling one, and if the coverage provision advances that interest in the least restrictive manner.
While a victory for either the corporations or their owners would directly harm women’s health, it could also open the door to employers being able to exempt themselves from other laws that they have religious objections to, such as anti-discrimination protections.
Women’s Access to Reproductive Health Clinics: McCullen v. Coakley.
The Court is being asked to overrule a 2000 precedent upholding buffer zones around reproductive health clinics. The current case involves a Massachusetts law that creates a 35-foot buffer zone around such clinics (with exceptions for employees, patients and others with business there, and people passing through on their way somewhere else). Anti-choice advocates claim this violates their freedom of speech because it restricts only people with a particular viewpoint.
The lower courts disagreed, citing the 2000 case of Hill v. Colorado, where the Supreme Court upheld a buffer zone making it illegal to approach within eight feet of people at clinics for the purpose of counseling, education, or protesting. (This applied anywhere within 100 feet of the clinic.) That 6-3 decision analyzed the law as a content-neutral regulation of speech that was reasonable in light of the importance of protecting unwilling people’s right to avoid unwanted conversations and their right to pass without obstruction. However, two of the conservative Justices in the 6-3 majority have been replaced by far more conservative Bush nominees: Rehnquist (by Roberts) and O’Connor (by Alito). Since Justices Kennedy, Scalia, and Thomas dissented in the 2000 case, there may very well be five votes to not only strike down the Massachusetts buffer zone but also to overrule Hill completely.
As noted in an amicus brief that PFAW Foundation joined, the Massachusetts law applies to people regardless of the content of their speech and is a content-neutral way to ensure that women can enter the clinics to exercise their constitutional rights. The law does not prevent abortion opponents from approaching women who are more than 35 feet from the clinic entrance (as opposed to the Colorado law, which prohibited unwanted close contact anywhere within 100 feet of the clinic). And the record in this case shows that anti-choice advocates have consistently been able to distribute literature to individuals approaching clinics, as well as to have quiet conversations with them.
Nevertheless, many felt after oral arguments that five conservative justices were likely to strike down the Massachusetts law. If they do, we will see if they also overrule the 2000 precedent, opening the floodgates to another era of efforts to block women from exercising a deeply personal constitutional right.
Regulating greenhouse gases: Utility Air Regulatory Group v. EPA (and several companion cases).
In these cases, industrial interests and their allies are attacking the EPA’s ability to effectively regulate their greenhouse gas emissions.
In Massachusetts v. EPA in 2007, the Supreme Court ruled in a 5-4 decision that the EPA has the authority under the Clean Air Act to regulate emissions of greenhouse gases from new motor vehicles, since they easily fit within the CAA’s broad definition of “air pollutant.” This ruling, resisted by the Bush Administration, allowed the Obama Administration to adopt regulations on greenhouse gases from cars and trucks in 2010.
Under the EPA’s longstanding interpretation of the Clean Air Act, once EPA regulation of a pollutant from mobile sources (like cars and trucks) goes into effect, that pollutant is automatically subject to regulation under EPA rules for stationary sources (like factories and power plants). Those regulations involve permitting requirements for facilities emitting pollutants over statutory thresholds. But greenhouse gases are emitted in far greater volumes than other pollutants, and millions of industrial, commercial, and even residential sources exceed the statutory threshold. The EPA recognized that immediately adding these millions of stationary sources to its permitting programs would impose tremendous costs to both industry and to state permitting authorities. So in what is called the “Tailoring Rule,” the agency chose to move gradually, initially subjecting only the largest sources of emissions to mandatory greenhouse gas permitting, and planning a gradual phase-in for others, with planned rulemakings on how best to accomplish that phase-in.
Industrial interests, the Chamber of Commerce, and their conservative allies in state government have challenged the EPA rules. They argue that since the addition of greenhouse gases to the stationary sources permitting programs would cause what they characterize as results not desired by Congress (such as bringing huge numbers of buildings, including churches, schools, bakeries, and large private homes into the programs), it means that greenhouse gases are not the type of pollutant to which these permitting programs apply. And that lets the major industrial contributors to greenhouse gas pollution off the hook. They also claim that the Tailoring Rule is a rewrite of the Clean Air Act, which only Congress can do. So we end up with hyperbolic right-wing talking points in Supreme Court briefs, like this from Southeastern Legal Foundation:
This case involves perhaps the most audacious seizure of pure legislative power over domestic economic matters attempted by the Executive Branch since Youngstown Sheet & Tube [the 1952 case striking down President Truman’s seizure of steel mills during the Korean War].
As the Constitutional Accountability Center noted in their amicus brief supporting the EPA, the agency’s gradual approach satisfies rather than subverts the central purpose of the Clean Air Act:
This is not a suspension of the relevant statutory provisions nor a failure to enforce the CAA as written. To the contrary, EPA is setting priorities based on both practical realities and its limited resources, biting off no more than it or, as important, the regulated entities themselves, can chew at any given time. This phase-in of the CAA’s requirements is not a rewrite of the statute, and it is fully consistent with the executive authority vested in the President by Article II of our enduring Constitution and the separation of powers evidenced in the Framers’ design.