Religion returns to the Court’s docket too. Although the U.S. Congress opens its sessions with prayer, a federal appeals court held the First Amendment precludes the town of Greece, N.Y., from doing the same. In Town of Greece v. Galloway, the Court will have the chance to clarify the limits on government action imposed by the Establishment Clause, and whether ceremonial invocations of religion are necessarily unconstitutional. In this case the Court could rule narrowly on whether traditional prayers of this sort really constitute an unconstitutional “endorsement” of religion. Alternatively, it could take the opportunity to reconsider whether the First Amendment mandates the sort of separation of church and state the existing endorsement test implies.
Another significant religion case could well be added to the docket before the year is out. Petitions for certiorari are pending in two cases challenging the Obamacare requirement that larger employers provide health-insurance coverage for all forms of FDA-approved contraception. Dozens of such suits have been filed by religiously oriented employers but the first two cases to reach the Court involve privately held, for-profit corporations with religiously committed owners. Although both cases raise First Amendment claims, the real question is whether the contraception-coverage mandate passes muster under the Religious Freedom Restoration Act (RFRA), which subjects federal actions to more exacting scrutiny than is currently provided under the Free Exercise Clause. Central to a resolution of these cases will be whether for-profit corporations or their owners can press RFRA free-exercise claims.
In addition to the above, the Court has a full plate of significant business and regulatory cases, including challenges to Environmental Protection Agency regulations governing interstate air pollution and a state requirement that personal-care providers accept union representation. Further significant cases could be added this fall as the Court fleshes out its docket. Whatever else is added, there’s no shortage of potentially significant cases this year.
During his confirmation hearing, John Roberts remarked that judges should be like umpires, and that no one ever went to a game to watch the umpires at work. The chief justice might like the courts to be more like umpires, and to see policy debates focus on the elected branches, rather than the courts, but this may be a naïve aspiration in an age when practically every political fight of any significance finds its way to court. Indeed, so long as the Court’s docket looks like it has these past few years, this will be a particularly difficult aspiration to attain.
— NRO contributing editor Jonathan H. Adler is professor of law and director of the Center for Business Law & Regulation at the Case Western Reserve University School of Law.