Fireworks Expected at High Court

At mid-term, the justices have yet to confront major tests of executive authority.

, The National Law Journal


As the U.S. Supreme Court begins a monthlong holiday recess, court watchers await the unwrapping of decisions in some of the term's hot-button cases.

The justices began the October 2013 term with two of its potentially biggest cases being argued in the first two weeks. But despite the early start, no decisions have been issued yet in the challenge to federal aggregate limits on campaign contributions in McCutcheon v. Federal Election Commission, and in Michigan's defense of its constitutional amendment banning racial preferences in education in Schuette v. Coalition to Defend Affirmative Action.

The term may seem a little blockbuster-light compared with back-to-back historic terms involving health care, immigration, same-sex marriages and voting rights. But there are a number of headline grabbers and the new year brings two possible game changers for the executive branch.

"This is an amazing time in the Supreme Court, with term after term the court deciding some of the most controversial and important questions facing society," said Erwin Chemerinsky, dean of the University of California, Irvine School of Law. "This term, there are major issues about the separation of church and state and separation of powers and so much more. For better or worse, this is a court that wants to take on the hardest and most important questions."

In January, the court will hear the term's most significant political case — a challenge to President Obama's use of the recess appointments power in National Labor Relations Board v. Noel Canning. And not yet scheduled are arguments in two cases related to the new federal health care law that raise the religious objections of for-profit business owners to providing contraceptive insurance coverage.

In the 34 cases already argued, the court has issued six signed decisions and two unsigned per curiam rulings. Not surprisingly, because it is still early in the term, the signed decisions and one per curiam have been unanimous.

The justices divided only in dismissing a closely watched labor case, Unite Here Local 355 v. Mulhall. That case asked whether neutrality agreements between an employer and union seeking to organize workers violate the Labor Management Relations Act. Justice Stephen Breyer wrote a dissent that justices Sonia Sotomayor and Elena Kagan joined.

"One of the most interesting aspects of the court's current caseload is how small it is, even by Roberts Court standards," said Carolyn Shapiro, director of the Institute on the Supreme Court of the United States at the Illinois Institute of Technology Chicago-Kent College of Law. "I am not one who thinks that the court should simply take cases to fill up their docket, but it is striking how few they currently have — and, even so, they have 'dismissed as improvidently granted' two cases already. As Justice Breyer pointed out in his dissent in Mulhall, that was not the court's only option."

The biggest news of the new term, ironically, has been in what the justices decided they did not want to do in three abortion-related cases. Last month, the justices turned away two Oklahoma cases involving abortion. They had granted review in the state's appeal of the invalidation of its law restricting the use of medication abortions. The Oklahoma Supreme Court struck down the law as violating U.S. Supreme Court abortion decisions.

In an unusual move, the justices, after granting review, asked the Oklahoma Supreme Court to clarify the meaning and effect of the law. After the state court responded, the justices dismissed the state's appeal, which left in place the state supreme court decision.


In the second Oklahoma case, the justices denied review of another state supreme court decision striking down Oklahoma's law requiring doctors, an hour before an abortion, to perform an ultrasound, either vaginally or abdominally, and to describe "the dimensions of the embryo or fetus, the presence of cardiac activity, if present and viewable, and the presence of external members and internal organs, if present and viewable."

However, abortion-rights advocates lost their effort to block part of a Texas law requiring physicians who perform abortions to have hospital admitting privileges within 30 miles of the abortion facility. They sought reinstatement of a stay while an appeal in a challenge to the law was pending in the U.S. Court of Appeals for the Fifth Circuit. Once that appeal is decided, the Texas case is likely to return to the high court on the merits.

What follows is a quick look at some of the more significant cases awaiting decision or to be argued in 2014.

Campaign finance/affirmative action. In McCutcheon, watch to see whether the justices, for the first time, strike down limits on thus far sacrosanct limits on campaign contributions.

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