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Experts predict more divided decisions when Supreme Court takes on controversial cases in new term

Experts predict more divided decisions when Supreme Court takes on controversial cases in new term

By John Glynn

As the Supreme Court prepares to begin a new docket in October, constitutional law experts recently discussed some of the upcoming cases and analyzed what could result from potential new legal interpretations on political tactics, freedom of speech and privacy in the digital age. If the past term is any indication, there may be more division and less harmony in the court’s future, according to experts on the American Bar Association panel, “A Conversation on the Supreme Court.”

“We had a blockbuster term last June that ended with a series of hotly contested 5-4 decisions involving voting rights and marriage equality,” said Jeffrey Rosen, president and CEO of the National Constitution Center.

Erwin Chemerinsky, dean and distinguished professor at the University of California-Irvine School of Law, said that out of the 73 cases the Supreme Court decided in the 2012-13 term, 23 were resolved with a 5-4 split.

Rosen said the big question for the new term will be whether the high court will continue to divide 5-4 along apparent ideological lines or whether Chief Justice John Roberts will be able to persuade the justices to come together for narrow, unanimous opinions, similar to the past term’s affirmative action case, Fisher v. University of Texas.

Affirmative action will make an appearance in the upcoming term as well, with the Supreme Court agreeing to hear Schuette v. Coalition to Defend Affirmative Action, a case with the potential to address questions that remained after the Fisher decision. The court will examine whether a state law that prohibits discrimination or preferential treatment based on race or sex is a violation of the Equal Protection Clause.

“It's very different than any of the other affirmative action cases that have ever come before the court,” Chemerinsky said. “The prior affirmative action cases, whether it’s Fisher or Grutter or even back to Bakke, were all about when is it permissible for the government to voluntarily choose to have an affirmative action program?” He said it will be interesting to see how the Supreme Court deals with a state prohibiting affirmative action programs.

Another high-profile case, the National Labor Relations Board v. Noel Canning, involves the validity of the NLRB to act when the board members were appointed by President Barack Obama while Congress was in recess. In order to operate, the NLRB has to have at least three out of five members available to make a decision. In order to get past the Senate filibusters that were stopping the NLRB from taking action, Obama made three recess appointments to the NLRB.

The Recess Appointments Clause in Article 2 of the Constitution states that “the president shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” When the newly appointed NLRB members ruled against Canning in a case, he sued the board, claiming it did not have the proper authority to make the decision.

Chemerinsky described the Canning case that came before the NLRB as “a garden-variety kind of labor management matter that comes before the NLRB all the time. There's nothing particularly unique about these facts or even notable.”

“What makes this case so important is the way in which the membership of the NLRB had been determined as of the time it was ruling on the union’s complaint against Noel Canning,” he said.

“The stakes in this are enormous because the NLRB, with these three recess appointments, issued hundreds and hundreds of orders. What if the Supreme Court affirms the D.C. Circuit on any of these grounds? Does that then mean that everything that this NLRB did is overturned?” Chemerinsky continued. “Earl Warren was a recess appointment to the Supreme Court by Dwight Eisenhower. He presided over the oral arguments in Brown v. Board of Education. His recess appointment wouldn’t have been valid under the theory of the D.C. Circuit. This goes back to practices that started in the early 19th century.”

A review of the executive branch’s use of the Recess Appointments Clause reveals that the issue has remained controversial in the absence of a Supreme Court decision delineating what the framers meant. This case in the upcoming term may finally resolve the ongoing debate.

Another political issue at hand in McCutcheon v. Federal Election Commission is the idea of limiting how much money an individual can contribute to a political campaign. Is setting a limit on how much a person can give to federal election candidates a violation of free speech?

Chemerinsky said the court previously found in Buckley v. Valeo that contribution limits are allowed, but expenditure limits are unconstitutional. For example, a supporter can only donate a certain amount of money directly to a campaign but can spend unlimited quantities on advertisements to support a particular candidate or issue. After the Citizens United decision, which led to almost $1 billion in new political spending in the 2012 elections, an outcome against contribution limits could once again change the political fundraising landscape.

“It will be fascinating to see if the court really does take the step of abandoning the expenditures/contribution distinction,” said Paul Smith, partner at Jenner & Block LLP. Smith said that if the court does abandon the distinction, “basically the entire edifice of campaign finance regulation will come down.”

In the high-profile case of McCullen v. Coakley, abortion sets the stage but is not the issue at hand. Rather than deciding on the legality of the medical practice, as the court has wrestled with in the past, the question will revolve around the First Amendment and the court’s interpretation of free speech.

Massachusetts has a law preventing abortion opponents from getting within 35 feet of clinics providing abortions. In the case Hill v. Colorado, the justices held that a law that prohibited anyone from entering an area next to a health care facility to engage another person in conversation without permission was constitutional, mainly because, as Smith said, “the law didn’t draw lines based on content. It applied to everyone and therefore was permissible.” Since the law in Massachusetts allows employees of the clinic to approach people, the plaintiffs claim it is “a content-based distinction that allows pro-choice speech but not anti-abortion speech,” Smith explained.

He predicts divided decisions on McCullen v. Coakley and Town of Greece v. Galloway, another First Amendment case before the court, but this one concerning freedom of religion. Smith said he expects the “two warring camps” to disagree on whether a town prayer before a city council meeting violates the amendment.

Another challenge for the court will be whether to determine the legality behind certain searches as they pertain to technology. While the Supreme Court has handled DNA technology and Fourth Amendment limits in previous terms, it has yet to tackle the constitutionality of cellphone and smartphone searches. Erica Hashimoto, professor at University of Georgia School of Law, hopes that the court will take up two petitions concerning these searches, because “moving forward, this is going to become an important issue.”

Hashimoto also thinks it will be an entertaining oral argument, based on past sessions concerning the justices’ understanding of text messaging. “Justice [Elena] Kagan in a recent speech said the justices are not necessarily the most technologically sophisticated people and the court hasn't really gotten to email. So oral argument may be really fun,” Hashimoto said.

Chemerinsky said the court first needs to determine what information stored digitally is protected under the Fourth Amendment. “I don't think the court can decide whether looking at someone’s cellphone is a search and what’s in the scope of the arrest without having a theory of informational privacy,” he said.

With each controversial issue that comes before the court, there is history and precedent. As Chemerinsky said, on hot-button topics where the country remains divided, each outcome will have its supporters and dissenters. So while Chief Justice Roberts might desire consensus among the justices, cases are often still decided by a margin of one. “[Roberts] also knows the legitimacy of the Supreme Court is a product of all it’s done over 200 years and no single decision will matter much for its legitimacy,” Chemerinsky said.

For more information about upcoming Supreme Court cases, the ABA Division for Public Education’s Preview publication provides plain-language analysis of all cases given plenary review.

“A Conversation on the Supreme Court” was a part of the ABA Premier Speaker Series, a program that provides free continuing legal education credits. It was sponsored by the American Bar Association and its Division for Public Education

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