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A Preview of the 2013 U.S. Supreme Court Term

Dan Schweitzer, Supreme Court Counsel

Conventional wisdom holds that the U.S. Supreme Court is taking it slow after two momentous Terms. No same-sex marriage, Voting Rights Act, or health care law this Term; just a steady diet of civil procedure, statutory construction, and habeas corpus. As is often the case, however, the conventional wisdom captures part of the truth but misses deeper insights.

To be sure, the Supreme Court is not hearing any cases (yet) of the same magnitude as National Federation of Independent Business v. Sebelius (on the constitutionality of the Affordable Care Act), United States v. Windsor (the Defense of Marriage Act), or Shelby County v. Holder (the Voting Rights Act). But that hardly means the Court�s lineup of cases matters only to a few specialists and Court-watchers. The 2013 Term includes many cases of major importance to the nation, generally, and to the work of attorneys general offices, specifically. Here�s a quick look at some of them.

Religion and the Law. In early November, the Court will hear arguments in Town of Greece, New York v. Galloway, a challenge to a town�s practice of opening its monthly board meetings with a prayer delivered by volunteer clergy. The Second Circuit held that the practice violated the Establishment Clause because almost all the prayers were delivered by Christian clergy, who often invoked explicitly Christian themes. The Town argues that that ruling conflicts with Marsh v. Chambers, which upheld the practice of starting legislative sessions with an invocation based on the practice�s �unambiguous and unbroken history.� Among the issues the Court will address is whether the �endorsement� test should apply in this context (or at all); the proper test for determining when the government �coerces� religious practice; and the impact of sectarian references in prayers at government-sponsored events.

The Court is also likely to take up whether the Affordable Care Act�s mandate that employers� health plans cover contraceptive services violates a for-profit corporation�s religious rights under the Religious Freedom Restoration Act (RFRA). The Third and Sixth Circuits have held that RFRA does not protect for-profit corporate employers; the Tenth Circuit held that it does. Two cert petitions, one by the United States (Sebelius v. Hobby Lobby Stores, Inc.) and one by an employer (Conestoga Wood Specialties Corp. v. Sebelius), have already been filed. A cert grant in one or both of the cases seems inevitable.

Abortion. Over the past several years, many state legislatures have adopted laws that make it more difficult to obtain an abortion ─ some by barring abortions at a certain point in a pregnancy, others by imposing new regulations on abortion clinics that have the practical effect of reducing the number of facilities providing abortions. The first of this new generation of abortion laws to reach the Supreme Court is an Oklahoma statute that regulates abortions in still a third manner: by barring any off-label use of prescription medications (such as RU-486) to induce abortions.

To the Oklahoma legislature, the law is a sensible way of protecting women�s health; to the plaintiffs challenging the law, off-label use of RU-486 is accepted medical practice that has made it easier for women to use the medication. The Court granted certiorari to decide whether the law satisfies the �undue burden� test of Planned Parenthood v. Casey. All eyes will be on Justice Anthony Kennedy and how he applies Casey to a measure ostensibly designed to make the process of obtaining an abortion safer. In an usual procedural move, however, the Court certified to the Oklahoma Supreme Court a question concerning how precisely the state law operates and reserved further proceedings �pending receipt of a response from� that court.

The Court will also address abortion in McCullen v. Coakley, which involves a First Amendment challenge to a Massachusetts law that creates a 35-foot buffer zone around an abortion clinic. In Hill v. Colorado, the Court upheld a Colorado law that made it unlawful for a person, within 100 feet of a health care facility, to �knowingly approach� within eight feet of another person without that person�s consent. And in Madsen v. Women�s Health Center, Inc. the Court upheld an injunction barring protesters from public rights-of-way within 36 feet of the property line of a particular abortion clinic. Taken together, Hill and Madsen suggest that Massachusetts� law should survive the challenge. But two factors are working against the state. First, the composition of the Court has changed since those decisions. Chief Justice William Rehnquist and Justice Sandra Day O�Connor were in the majority in Hill and Madsen; their replacements ─ Chief Justice John Roberts and Justice Samuel Alito ─ are probably not as supportive of these sorts of laws. (Note that Justice Kennedy dissented in both cases.) Second, petitioners contend that the law ─ unlike the laws at issue in Hill and Madsen ─ discriminates based on viewpoint because it creates an exception for clinic employees and agents. The Massachusetts attorney general informed law enforcement personnel that the statute does not allow clinic employees and agents to engage in pro-choice speech; it merely allows them to ensure safe access into the clinics. It will be interesting to see what weight the Court gives such an attorney general opinion.

Affirmative Action. The Supreme Court has upheld the limited use of affirmative action programs in higher education. But the Court has not, of course, required that public schools implement affirmative action programs. A public school is therefore free not to take race into account at all when deciding who to admit. In Michigan, the people took the issue out of the state universities� hands by adopting an initiative that amended the state constitution to prohibit affirmative action in state universities. By an 8-7 vote, the en banc Sixth Circuit held that this violated the Equal Protection Clause.

At first glance, that�s a peculiar result. Whether a public entity should implement an affirmative action program is a quintessential policy choice, and the people of the state of Michigan made that choice. What�s the problem? According to the Sixth Circuit, the problem is that the majority �may not manipulate the channels of change in a manner that places unique burdens on issues of importance to racial minorities.� To change the University of Michigan�s policy regarding the admission of the children of alumni, a person need only convince the university�s Board of Trustees; to change the University of Michigan�s affirmative action policy a person must now amend the state constitution. That argument finds some support in Washington v. Seattle School Dist. No. 1, which struck down an amendment to a state constitution that prohibited the use of busing to desegregate the schools. That said, five members of the Court doubt that any affirmative action programs in higher education are constitutional. It would be surprising if any of those Justices saw a problem with a state barring such programs at the wholesale level.

Campaign Finance. McCutcheon v. Federal Election Commission is the Court�s first major campaign-finance case since Citizens United. At issue is the constitutionality of federal limits on the aggregate amount an individual may contribute to federal candidates, political parties, and other political committees. The federal election laws don�t merely limit the amount a person may contribute to an individual candidate, party, or committee. They also limit the total amount someone can contribute to candidates ($48,600) or entities ($74,600) in a two-year election cycle.

Petitioners argue that although the Court upheld aggregate contribution limits in Buckley v. Valeo, the law at that time did not limit how much a person could contribute to a party or PAC. Current law imposes such limits and also (in petitioners� words) �contains numerous other, much more direct anti-corruption and anti-circumvention measures.� The United States counters that without the limits, an individual could contribute $3,628,000 in a two-year election cycle to �entities affiliated with a single party� ─ and could do it �with a single check� to a �joint fundraising committee.� In the United States� view, �Congress is entitled to conclude that an individual who makes contributions of a magnitude that the aggregate limits would currently prevent might acquire actual or perceived �improper influence� over a party�s elected officials, regardless of how the money is spent.�

Presidential Power. Last spring, the D.C. Circuit issued an opinion that dramatically limited when a president can make a recess appointment. In the court�s view, the Recess Appointments Clause of the Constitution empowers the president to make recess appointments (1) only during recesses that occur between enumerated sessions of the Senate (and not during intra-session breaks in the Senate�s business), and (2) only to fill vacancies that first arose during the recess (and not to fill vacancies that might exist during a recess). As a practical matter, that reading of the Constitution would eliminate the president�s ability to make recess appointments.

In its brief to the Supreme Court, the U.S. solicitor general argues that the D.C. Circuit misread the language of the Recess Appointments Clause, misapprehended the history of recess appointments, and adopted a construction that �would undermine its central purposes, because it would prevent the president from being able to fill offices, and exercise his constitutional responsibility to take care that the laws be faithfully executed, even when the Senate is unable, for a significant period of time, to give its advice and consent to appointments.�

Criminal Law. Among the Court�s many criminal law cases, two Fourth Amendment cases stand out. On Nov. 13 the Court will hear argument in Fernandez v. California, which addresses when police can search a home or apartment when one resident consents to an officer�s entry and another resident objects. The Court held in United States v. Matlock that officers may enter a home when one resident consents and another resident (the suspect) is away from the premises (in a squad car) and therefore has no opportunity to object. But it also held in Georgia v. Randolph that officers may not enter a home when one resident consents but another resident is physically present and objects to entry. Fernandez involves a slightly different situation.

Police knocked on an apartment door. A woman, who appeared to have been beaten, opened the door. Her husband (Fernandez) then shouted from inside the apartment that the officers may not enter. They detained him to protect the wife and within an hour arrested him for committing an unrelated robbery. About an hour after the police�s initial appearance at the apartment, an officer returned and asked the wife for permission to enter and search the apartment. She consented and the officer found evidence linking the husband to the robbery. The question is whether the husband�s earlier objection to entry by the police still had force. In other words, should the Court view the situation as akin to Matlock or as akin to Randolph? Fernandez argues that the police shouldn�t be allowed to get around Randolph by arresting the objecting resident so that there�s no longer anyone present who objects. California counters that the officers arrested Fernandez based on probable cause, and there�s no social convention that a person may not enter a home merely because another resident had previously objected.

The Court will also probably take up whether the police may view the contents of a cell phone that they obtained incident to a lawful arrest. In United States v. Wurie, the United States seeks review of a First Circuit decision holding that the police violated the Fourth Amendment when they reviewed the call log of a �flip� phone they had seized incident to arresting Wurie. The officers saw that the phone had received repeated calls from a number identified as �my house.� By pressing a button on the phone�s call log, the officers obtained the number for �my house.� Using an on-line directory, the officers tied that number to an address, where they eventually found crack cocaine and other contraband. The First Circuit, in holding the search of the phone unlawful, emphasized the vast amount and �highly personal nature� of information on cell phones.

Meanwhile, the California Court of Appeal upheld a more intrusive search of a �smartphone,� prompting the cert petition in Riley v. California. The officers arrested Riley, seized his phone, and then searched through the phone looking for evidence ─ ultimately finding a photo of Riley in front of an automobile that the police suspected had been involved in a prior shooting. The state later charged Riley with that shooting. The California court upheld the search based on longstanding Supreme Court precedent allowing the police to search any items found on arrestees. The question now for the Court is whether to review a case involving a narrow search of a �dumb� phone, a broad search of a smartphone, or both.

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