Monday, June 30, 2014

Last day of the Term

We'll get Hobby Lobby and Harris v. Quinn at 10am.  SCOTUSblog has all of the coverage.  Here's a brief summary of Quinn:

The Court has also not yet ruled on Harris v. Quinn, in which the Court is considering whether a group of home health care providers who work for the state of Illinois can be required to provide financial support to a union that represents them.  Sahil Kapur previews the decision at Talking Points Memo, describing it as “a landmark case that unions fear could deal a fatal blow to their movement.”  At PrawfsBlawg, Matt Bodie considers how the decision in Harris might play out if, as many people believe, Justice Samuel A. Alito writes for the Court.
And the issue in Hobby Lobby:
Whether the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et seq., which provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest, allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners. 

There's been a lot of talk about the number of 9-0 opinions this Term.  From the NY Times:

FOR years, particularly after the 2000 election, talk about the Supreme Court has centered on its bitter 5-to-4 divisions. Yet it is worth reflecting on a remarkable achievement: The court has agreed unanimously in more than 66 percent of its cases this term (and that figure holds even if Monday’s remaining two cases, on the Affordable Care Act’s contraceptive coverage and on public-sector unions, are not unanimous). The last year this happened was 1940.
The justices’ ability to cross partisan divides and find common ground in their bottom-line judgment in roughly two-thirds of their cases — including the two decisions handed down Thursday, restricting the president’s ability to issue recess appointments during brief breaks in the Senate’s work, and striking down a Massachusetts ban on protests near abortion clinics — should remind us that even in this hyperpartisan age, there is a difference between law and politics. 

Although some of the opinions have been unanimous in result, the concurrences often seem like dissents, especially with Scalia going off, like in the recess appointment case:

Today's Court agrees that the appointments were in-valid, but for the far narrower reason [*38] that they were made during a 3-day break in the Senate's session. On its way to that result, the majority sweeps away the key textual limitations on the recess-appointment power. It holds, first, that the President can make appointments without the Senate's participation even during short breaks in the middle of the Senate's session, and second, that those appointments can fill offices that became vacant long before the break in which they were filled. The majority justifies those atextual results on an adverse-possession theory of executive authority: Presidents have long claimed the powers in question, and the Senate has not disputed those claims with sufficient vigor, so the Court should not "upset the compromises and working arrangements that the elected branches of Government themselves have reached." Ante, at 9.
The Court's decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates. To reach that result, the majority casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best. The majority's insistence on deferring to the Executive's untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a diminution of this Court's role in controversies involving the separation of powers and the structure of government. I concur in the judgment only. 

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