Tuesday, November 12, 2013

Supreme Court's New Term: Headliners & Possible Blockbusters (Part 1)

The Court's new term has begun in full swing. Since the first Monday in October--the Court's traditional opening session of arguments--the Justices have been confronting headline issues that could generate blockbuster decisions.

Campaign finance. Abortion clinics. Town prayers. Affirmative action. Warrantless home searches. Presidential recess appointments. Those are among the controversial matters already on the Court's docket.

Let's take a quick look at those cases. We'll start with a few that pose questions under the First Amendment.

[I've been talking a lot about these cases. So, for those who'd prefer--or would like to supplement this post--I've placed links to a couple of radio and TV interviews at the end.]

Campaign Finance (McCutcheon v. Federal Election Commission)
In the 2010 Citizens United decision, the Court upheld a First Amendment right to spend money to finance political communications--in that case, a documentary critical of Hillary Clinton. By a bare majority, the Justices ruled that the restrictions on such expenditures, imposed by the McCain Feingold Law, violated free speech.

The McCutcheon case this term deals, not with expenditures per se, but with contributions to political parties or candidates. The McCain Feingold Law imposes various limits on the amount of such contributions allowable.

Are the restrictions on contributions also invalid? Do they violate free speech just as the restrictions on expenditures were held to do in Citizens United?

The decision may well rest on whether any of the conservative Justices believe that unlimited contributions made directly to political parties or candidates create a much greater risk of corruption than do expenditures made for independent communications.

Abortion clinics (McCullen v. Coakley)
In its 2000 decision in Hill v. Colorado, the Justices approved a state law that prohibited protesters from coming within 8 feet of a person entering a "health care facility." The current case involves a state law (Massachusetts) that prohibits anyone--other than employees, patients, and emergency personnel--from coming within 35 feet of a "reproductive health facility."

By a vote of 6-3, the Court had upheld the Colorado law as a neutral safeguard to insure unobstructed access to health care. The composition of today's Court and the substance of the Massachusetts law, however, are quite different.

Justice Sandra Day O'Connor voted with the majority to uphold the Colorado law; she has been replaced by the more conservative, as well as less sympathetic to the right to choose, Justice Samuel Alito. Chief Justice William Rehnquist also voted with the majority in the Colorado case; he has been replaced by apparently staunchly Catholic, as well as more staunchly free speech, Chief Justice John Roberts.

Moreover, the Massachusetts law prohibits all speech and all expressive activities and, indeed, even an appearance near the facility. It creates a buffer zone of a much greater distance, and one around the facility--regardless of whether any person is approached or any access is obstructed.

This law is likely to be struck. Despite their frequent exhortations about allowing the states a great deal of latitude and deferring to the people's representatives. Despite their advocacy for exercising judicial restraint and upholding legislation unless it is clearly unconstitutional. Every one of the conservative Justices will almost certainly do the opposite.

They will all almost certainly vote to invalidate the Massachusetts law.That's John Roberts and Samuel Alito, plus Antonin Scalia, Anthony Kennedy, and Clarence Thomas who even voted against the Colorado law.

In fact, they may well be joined by one or more of the liberals. It will be difficult for supporters of the Massachusetts law to reconcile it with the rigorous protection of free speech that has often characterized the current Court--at least protection for speech that a majority think is politically worthwhile.

Town Prayers (Town of Greece v. Galloway)
Twenty years ago, in Marsh v. Nebraska, the Court upheld the practice of a state supported chaplain opening legislative sessions with a generic prayer. Now the Justices face the issue of a town that opens its board meetings each month with a prayer given by invited local clergy.

The rub? Virtually every one of the clergy have been Christian, and most of their prayers have been explicit invocations of Jesus Christ or otherwise unabashedly Christian in character.

The First Amendment prohibits any law "respecting an establishment of religion." The Court has construed that provision in various ways. Among them:
  • government must not endorse religion or a particular religion;
  • government must not coerce anyone to participate in religion or a particular religion;
  • government must be neutral regarding religion and particular religions;
  • whatever government does must not have a religious purpose, or a primarily religious result, or entangle government too much with religion.
Then, of course, there's Thomas Jefferson's stated view: the First Amendment creates a wall of separation between church and state. In other words, government must stay out of the business of religion, period. (Notably, the First Amendment's religious provisions were largely derived from the Virginia struggle for religious freedom led by Jefferson.)

In its 1983 Marsh decision, the Court was not particularly clear which test it was applying. It may not have been applying any specific test at all. Rather, it relied on the history and tradition in this country of government providing chaplains to accommodate the religious needs of its people and to acknowledge their religious nature. And to do so without advancing any particular religious beliefs.

So, did the Town of Greece overstep the permissible boundaries of Marsh with its overwhelmingly and explicitly Christian invocations? Will that even make a difference to a Court that is much more conservative than it was 20 years ago? E.g., John Roberts instead of Warren Burger, Samuel Alito instead of Sandra Day O'Connor, Clarence Thomas instead of Thurgood Marshall.

It is likely that a majority of the Justices will approve the Town's prayer practices as a general proposition. But also that the Justices will caution that any government-sponsored practice should be non-denominational.
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In Part 2, we'll take a look at the cases dealing with affirmative action, warrantless home searches, and presidential recess appointments.
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Below are the links to an interview on public radio on Susan Arbetter's Capitol Pressroom, and a TV interview on YNN's Capital Tonight with Liz Benjamin.

with host Susan Arbetter
Oct. 7, 2013: Prof. Bonventre
It’s the first Monday in October. Albany Law School Professor and author of the NY Court Watcher (www.newyorkcourtwatcher.com) Blog Vin Bonventre joins us with a rundown of the big cases before the Supreme Court. 

Radio podcast: 

HOST: Liz Benjamin
Nov. 6, 2013: Albany Law’s Vin Bonventre on Case Regarding Religion in Government
The US Supreme Court heard a case today that began in the Monroe County town of Greece.
Two residents there challenged the tradition of saying a prayer before town board meetings, arguing it violates the constitutional separation of church and state. But officals say those prayers are not hurting anyone. Both sides made their case to the justices today.
Albany Law School professor and author of the New York Court Watcher blog Vin Bonventre joined us to discuss.
TV interview: