You might have expected large crowds and loud protests this morning at the Supreme Court, which heard oral argument in McCullen v. Coakley, a case dealing with the intersection of abortion and free speech. (I previewed the case in Plain English yesterday.) But less than an hour before the argument began, the reporters and cameramen staking out the Court far outnumbered the protesters, a lone handful of abortion-rights supporters. The atmosphere inside turned out to be fairly subdued as well, lacking the fireworks that sometimes accompany high-profile cases. Indeed, Chief Justice John Roberts, who is normally an active participant, was uncharacteristically silent throughout the oral argument. Although that silence made it harder to handicap the oral argument, it still seems unlikely that Massachusetts will find five votes to uphold its law, which creates a thirty-five-foot buffer zone around abortion clinics that abortion opponents (among others) cannot enter. The bigger question is whether the Court’s five more conservative Justices will broadly strike down such measures, or whether a compromise solution that would permit a smaller buffer zone might be in the works. Let’s talk about today’s argument in Plain English. Continue reading »
Plain English / Cases Made Simple
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Tomorrow, the Court will hear the case of Eleanor McCullen, a seventy-seven-year-old Massachusetts grandmother who has spent over fifty thousand dollars of her own money to help pregnant women who decide not to get an abortion. All McCullen wants, she tells the Court, is to stand on a public sidewalk to provide information and offer help to women entering an abortion clinic, but a state law prohibits her from doing so. Based on the Court’s past track record on First Amendment cases, she may well soon get that chance. Let’s talk about McCullen v. Coakley in Plain English.
This morning’s oral argument in National Labor Relations Board v. Noel Canning, the challenge to the constitutionality of the president’s recess appointments to the federal labor relations board, checked many of the boxes for high-profile cases. There were long lines and cameras outside. Inside, there was a full press gallery, from which reporters craned their necks to try to see the celebrities (or at least what passes for celebrities in Washington): Senate Minority Leader Mitch McConnell, seated near White House spokesman Jay Carney and White House counsel Kathryn Ruemmler. There were sardonic comments by Justice Scalia, and there was high-quality advocacy. But unlike many high-profile cases, there seemed to be at least some degree of consensus among the Justices, virtually all of whom expressed skepticism of the federal government’s broad defense of the president’s recess appointments power. At the same time, however, a few Justices seemed wary of upending the longstanding practice – by presidents of all ideological stripes – with a ruling that would sharply limit the availability of recess appointments. Whether they can convince their colleagues to reach some sort of middle ground, however, remains unclear.
Most of the time, the Supreme Court decides cases with a careful eye to what is known as precedent – that is, its earlier cases dealing with the same or similar topics. Precedent plays a major role in important cases argued earlier this Term involving constitutional challenges to, for example, Michigan’s ban on the use of affirmative action at its public universities, the overall limits on how much an individual can contribute to candidates for federal office, and prayer at town council meetings. But on Monday, the Court will take on a constitutional issue for which there is no real precedent because the Justices have never confronted it before: when can the president appoint senior officials and judges without first getting approval from the Senate?
Both sides in the case – National Labor Relations Board v. Noel Canning – have tried to fill the void left by a lack of precedent with arguments based on the text of the Constitution, the understanding of the Constitution’s drafters, and the past practice of other presidents. After the oral argument, the Court will have the final say. Going forward, its decision will significantly affect the balance of power between the president and the Senate when it comes to filling vacancies in the government. Let’s talk about the case in Plain English. Continue reading »
On Wednesday morning, in Town of Greece v. Galloway, the Justices heard oral arguments in a lawsuit brought by two residents who argue that the town council’s practice of beginning its meetings with a prayer violates the Constitution. (I previously previewed the oral argument in Plain English.) A court of appeals had ruled that although prayers are permissible, these suggested that the town was endorsing Christianity. When the hearing was over, it looked like the prayers would survive. If that happens, though, a win for the town may have less to do with the Justices’ strong convictions that the prayers are on firm constitutional ground than with their sense that a ruling allowing the prayers to continue would create fewer challenges for the courts than the alternatives. Let’s talk about the oral argument in Plain English. Continue reading »
Thirty years ago, in Marsh v. Chambers, the Supreme Court held that the Nebraska legislature could begin its legislative sessions with prayers led by a chaplain who was employed by the legislature. But the Court has never settled when legislative prayers go too far and cross the line separating church and state. Since 1999, the town of Greece, New York, which is outside Rochester, has started its town council meetings with a prayer led by members of the local clergy or local residents. Today, in Town of Greece v. Galloway, the Court will hear oral arguments about whether the town’s prayers are constitutional, but its decision could have a wider impact on the law governing the intersection of church and state. Let’s talk about the case in Plain English. Continue reading »
Today’s oral argument in Bond v. United States was a spirited one, but one that sounded a lot more like a law school lecture than the daytime drama suggested by the facts of the case. (My Plain English preview of the case is available here.) And at the end of that lecture, and despite the government’s fervent defense of the laws at issue in the case as an essential part of the nation’s efforts to combat chemical weapons, including in the ongoing conflict in Syria, it looked like the Court was poised to put real limits on when and how Congress can rely on its power to enter into treaties to then pass laws putting those treaties into effect.
Carol Anne Bond was charged with violating federal laws prohibiting the use of chemical weapons when she tried to poison her husband’s mistress. Her lawyer, former Solicitor General Paul Clement, began with the idea that, if the federal laws at issue really do “reach every malicious use of chemicals,” then they exceed the powers given to Congress by the Constitution. The fact that the laws were passed to implement a treaty does not, he said, somehow enlarge Congress’s powers.
One of the fundamental principles of our government is that Congress does not have unlimited power; instead, it only has the power that the Constitution gives it. For example, as we saw during the 2012 challenge to the Affordable Care Act, Congress cannot use its power to regulate trade between the states to justify requiring everyone to buy health insurance, though it can impose a tax that has essentially the same effect; it also cannot make it a federal crime to have a gun near a school. But what about the provision of the Constitution that gives Congress (and the Senate in particular) the power to approve a treaty with other countries? Can Congress then use that power to pass laws to put the treaty into effect in the U.S., even if it wouldn’t otherwise have had the constitutional power to do so? That is the question before the Court this morning in Bond v. United States. But that weighty issue comes to the Justices in an improbable story that seems more like an episode in a soap opera. Let’s talk about the case of Carol Anne Bond, spurned spouse, in Plain English. Continue reading »
In late June, the Court ordered a lower court to take a tougher look at the University of Texas’s consideration of race as a factor in its admissions process, but it allowed the program to survive, at least for now. Today the issue before the Court was different, and the measure being challenged was in a sense the opposite: the Court heard oral argument on whether an amendment to the Michigan constitution that bans (rather than encourages) the use of affirmative action at public universities violates the Constitution. Going into the oral argument, it seemed very likely that at least the five most conservative Justices on the Court would uphold the ban. That may ultimately be the result, but the case may also be less of a cakewalk for the state than it might have expected. Continue reading »
As I noted earlier this week, the new Term has been described as a “season of sequels.” The “sequel” theme may be at its zenith on Tuesday afternoon, when – in a rare afternoon argument – the Court will return to a controversial issue that was on its docket quite recently: the use of affirmative action by public universities. In late June, the Court issued its decision in Fisher v. University of Texas at Austin, a challenge to that university’s consideration of race in its undergraduate admissions process. The Court sent the case back to the lower court with instructions to take a closer (and tougher) look at the policy – including whether there are any alternatives that could achieve a diverse student body without using race. Next week, in Schuette v. Coalition to Defend Affirmative Action, the Court will confront what this blog’s Stephen Wermiel has called the “mirror image” of the Fisher case. In Fisher, the Court was considering whether the Constitution allows a university to (voluntarily) consider race as a factor in admissions; in Schuette (pronounced shoot-ee), the issue is whether the Constitution allows a state to do the opposite: prohibit universities from using race as a factor. Let’s talk about the new case in Plain English. Continue reading »