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Musings on the Supreme Court Term at the halfway mark

Dan Schweitzer, Supreme Court Counsel

A Supreme Court Term unofficially runs from late September, when the Justices hold their first conference after the summer recess, to late June, when the Justices issue their final opinions. That makes mid-February the halfway mark of the Supreme Court Term and an appropriate time to take stock. What have we learned at press time from the 21 opinions that have been issued so far, the 49 oral arguments, and the 75 cert grants this Term?

So far, so good, for the States.

Four of the 21 decisions so far were in state attorney general�s office (AGO) cases (Burt v. Titlow, Kansas v. Cheever, Mississippi ex rel. Hood v. AU Optronics, and Fernandez v. California.) and the state prevailed in all four. I doubt the states will prevail in all of the remaining 11 AGO cases to be argued or decided, but we�re off to a good start.


A slow year for habeas corpus.

Most Terms feature five to 10 habeas corpus cases. For reasons unknown, only two habeas corpus cases are on the Court�s docket this Term. Is this a sign that the lower federal courts are getting the message that they should defer to reasonable state court decisions? I suspect not. A more likely explanation is that the Court has already resolved most of the disputes among the lower courts over how to interpret the Antiterrorism and Effective Death Penalty Act (AEDPA). And there is a limit to how many times the Court will grant certiorari to tell a federal court of appeals that it erred when it granted habeas relief in the absence of clearly established law.


A busy year for intellectual property.

The Court is hearing eight intellectual property (IP) cases this Term, accounting for more than 10 percent of the docket. The explosion of the Court�s IP docket reflects the growing importance of intellectual property in our economy as well as the Court�s apparent dissatisfaction with the Federal Circuit�s interpretation of the patent laws. One of the patent cases the Court is hearing � Alice Corporation Pty. Ltd. v. CLS Bank International � involves the important question of when computer-implemented inventions are eligible for patents. The Federal Circuit was unable to provide a coherent answer, with the 10-judge en banc court producing a one-paragraph per curiam opinion, five concurring and dissenting opinions, and �additional reflections� by Chief Judge Rader. No wonder the Supreme Court stepped in.


How to interpret the Constitution: 101.

Every once in a while the Court hears a case that raises fundamental questions about how we should interpret the Constitution. These tend to be cases where, for whatever reason, no Supreme Court precedent governs the meaning of a provision of the Constitution. Heller v. District of Columbia, which held that the Second Amendment secures an individual right to possess guns for self-defense, was one such case. This Term the Court is hearing another one: National Labor Relations Board v. Noel Canning.


At issue is when the Recess Appointments Clause authorizes the president to make a recess appointment. For many decades, presidents have made recess appointments during �recesses� within official sessions of the Senate; and made those appointments to fill vacancies that happened to exist during those recesses, as opposed to vacancies that first arose during recesses. The D.C. Circuit held that these practices contravened the Recess Appointments Clause, which (in its view) permits recess appointments only during recesses that occur between enumerated sessions of the Senate and only with respect to vacancies that arose during those (now exceedingly brief) recesses. If the Supreme Court affirms, it would virtually eliminate the president�s recess appointment power.

The Supreme Court has never construed the Recess Appointments Clause, meaning the Justices must decide the case on first principles, not stare decisis. What do the specific words of the Clause mean? What was the Framers� purpose in adopting the Clause? What was the historic practice and how much weight should be given to it? Thus, at oral argument we had Justice Antonin Scalia asking Solicitor General Donald Verrilli, �Let�s assume that the text is clearly against you. Should I say, �oh, yes, it says something else, but the practice for over 200 years has been something different, and it�s the practice that must prevail?��

In the end, most of the Justices appeared to agree that the president�s position was supported by neither the language nor the purpose of the Clause − which was intended to deal with the 18th century problem of senators leaving town on horseback for six months and being unavailable to advise and consent, not the problem of an intransigent Senate refusing to confirm presidential appointments. All in all, it was a tough day in the Court for presidential power.

Equal treatment for devil worshippers?

Oral arguments are an opportunity for the Justices to press the logic of counsel�s claims and ask practical questions such as how a proposed rule would operate in the real world. We saw a nice example of that during the oral argument in Town of Greece v. Galloway. At issue was whether the Town had violated the Establishment Clause by opening its monthly town board meetings with prayers delivered by volunteer clergy who were selected from a list of almost exclusively Christian chaplains and who often invoked explicitly Christian themes, such as speaking of �our savior, Jesus Christ� and requesting audience participation.


Plaintiffs (respondents in the Court) argued, among other things, that the practice violated the Establishment Clause because it was sectarian. It is one thing (they argued) for the government to invoke God generally; it is another thing for the government to invoke � and thereby prefer � one religious denomination over another. At oral argument, skeptical Justices wondered whether the line between non-sectarian and sectarian prayers is workable.

    Justice Samuel Alito: Give me an example of a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists, Hindus. Give me an example. Wiccans, Baha�i.

    Chief Justice John Roberts: And atheists. . . .

    Justice Scalia: What about devil worshippers?

Eventually, counsel for respondents � Douglas Laycock, one of the nation�s leading scholars on church-state issues and an experienced advocate before the Court � gave the following response: �[Y]ou have all these lawyerly hypotheticals, but the fact is we�ve done this kind of prayer [i.e., non-sectarian prayer] in this country for 200 years. There�s a long tradition of civic prayer and the clergy know how to do it.� We�ll find out in May or June whether that answer did the trick.

Technology and the Court.

Court watchers have long observed that the Court treads very cautiously when it comes to new technologies. Our society has benefited greatly from innovations such as personal computers, the Internet, cell phones, and the like � and the Justices don�t want to stymie that progress inadvertently. Eventually, though, the Court has no choice but to resolve how 225-year-old provisions apply to the most modern of devices. And so in mid-January the Court agreed to resolve whether the Fourth Amendment permits the police to view the contents of cell phones they obtain incident to lawful arrests.


The Court granted certiorari in two cases, one involving an officer reading the call log in an �old-fashioned� flip cell phone (United States v. Wurie); the other involving an officer finding incriminating photos in a �smartphone.� Forty years ago, the Court held that officers may search items on the persons of arrestees, including briefcases and wallets. A straightforward application of that rule would allow officers to �search� cell phones found on arrestees. In Wurie, however, the First Circuit expressed concern that �a modern cell phone is a computer and a computer . . . is not just another purse or address book.� Its �immense� storage capacity allows it to hold a plethora of information �of a highly personal nature: photographs, videos, written and audio messages (text, email, and voicemail), contacts, calendar appointments, web search and browsing history, purchases, and financial and medical records.� The court found that this is �the kind of information one would previously have stored in one�s home and that would have been off-limits to officers performing a search incident to arrest.� And so the court held that officers may not search cell phones incident to arrest. The Supreme Court will hold oral argument in late April and decide the cases by late June.

Counting to five and strange bedfellows.

It is said that Justice William Brennan would tell his new law clerks that the most important rule of constitutional law is the �rule of five� � the side that gets five Justices wins the case. The challenge facing advocates before the Court is discerning what arguments will get those five (or more) votes. Some cases fall along clear liberal-conservative lines and the key is holding onto the five conservative Justices or persuading the usual swing Justice Anthony Kennedy, to support your position. Other cases present greater challenges. A good example is Harris v. Quinn, argued before the Court on Jan. 21.


On one level, the case was about whether personal assistants providing in-home care under a Medicaid waiver program were �employees� of Illinois and therefore could be required to pay a �fair share� fee to the union that is the exclusive bargaining representative of the state�s personal assistants. Once at the Supreme Court, however, the case evolved and presented a much broader and important question: Does a state violate the First Amendment when it requires any state employee, as a condition of employment, to pay a �fair share� fee to a union that is the exclusive representative for negotiating with the state over wages and other terms of employment? In other words, should the Court overrule Abood v. Detroit Board of Education (1977), which rejected a First Amendment challenge to mandatory �fair share� fees?

The Illinois AGO, along with a union and the United States as amicus curiae, argued that the Court should not overrule Abood. Complicating their task was a 2012 decision joined by the Court�s five conservative Justices (Knox v. SEIU Local 1000) that expressly called into question Abood�s soundness. What could Illinois, et al. say that would peel off one of the conservative Justices? One answer was to target Justice Scalia, who had long expressed doubt that the First Amendment protects government employees from being sanctioned for their speech. (Or much protection, at least.) For example, in Rutan v. Republican Party of Illinois (1990), he argued vigorously (in dissent) that the First Amendment permits the government to hire and fire employees based on their political affiliation. Illinois and the United States therefore devoted significant portions of their briefs to discussing the line of cases giving the government as employer far more ability to restrict speech than the government as regulator.

If oral argument is any indication � and it is not always � that strategy paid dividends. Justice Scalia aggressively questioned counsel for petitioners (the personal assistants who did not want to pay the �fair share� fee). Thus, after he flat-out rejected petitioners� argument that their right to petition the government was being infringed, he turned to their free speech claim: �There are some private employers who think they're better off with a closed shop and they just want to deal with one union and . . . they require all the people that they hire to become a member of this union and to pay union dues for representational purposes. They do this as private employers because they think it is in their interest as an employer. Why can't the government have the same interest?�

I don�t mean to suggest that Justice Scalia will definitely cast his vote for Illinois et al. He made a few statements suggesting he was open to petitioners� argument that the government goes too far when it compels speech. But it�s safe to say that Illinois et al. have a fighting chance of preserving Abood � thanks in no small part to creatively figuring out how to count to five.

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