Today the Supreme Court opens its term with a docket full of weighty issues. While no single case will be as closely watched as was NFIB v. Sebelius or the same-sex-marriage cases, the term as a whole could be no less significant than those of the past two years. With only half of the term’s docket filled, the Supreme Court has a surfeit of significant cases in the October 2013 term implicating a wide range of important questions.
The justices will scarcely have time to settle in before hearing high-profile cases. Tomorrow, the Court will hear arguments in a big campaign-finance case, McCutcheon v. Federal Election Commission. Whereas Citizens United concerned limits on independent campaign-related expenditures by corporations and unions, McCutcheon concerns limits on how much individuals may give to campaigns. Under current law, individuals can give a single candidate for federal office no more than $2,600 per campaign. Federal law also imposes an aggregate limit of $48,600 on what an individual may give to all campaigns in a given two-year campaign cycle. In other words, an individual who donates the maximum allowed can only contribute to 18 candidates in a given campaign cycle. Given that there are often more than 18 competitive House and Senate races around the country in an election year, some would like to be able to donate more than that as they spread their contributions around. Shaun McCutcheon feels this way, which is why he is challenging the aggregate-campaign-donation limits, along with the accompanying limits on aggregate contributions to political committees.
Critics of Citizens United fear that the Court will use McCutcheon to further chip away at campaign-finance regulations — and there is a decent chance they are right. Unlike the limits on individual contributions to individual campaigns, it’s not clear how the aggregate-contribution limit serves the government’s interest in preventing political corruption or the appearance thereof. Yet the results of a victory for Shaun McCutcheon (and the Republican National Committee, which is also a petitioner in the case) might not be what some would expect. The elimination of aggregate-contribution limits may increase campaign giving, but it might diminish the relative strength of outside groups as well. If candidates can raise more funds directly, they may be less beholden to ideological interests. However the Court rules, much will depend on the breadth of the holding. McCutcheon could test the chief justice’s stated commitment to narrow rulings.
One surprisingly narrow holding last term came in Fisher v. University of Texas at Austin, in which the Court reaffirmed that racial preferences in higher education must be subject to strict scrutiny, but stopped short of declaring the University of Texas’s use of race in admissions to be unconstitutional. Affirmative action returns to the Court in Schuette v. Coalition to Defend Affirmative Action, albeit from a different direction. Here the question is not whether state universities may consider race in university admissions, but rather whether the Equal Protection Clause of the 14th Amendment prohibits the voters of a state (in this case Michigan) from adopting a ballot initiative that bars consideration of race altogether. Believe it or not, the U.S. Court of Appeals for the Sixth Circuit held such a ballot initiative unconstitutional. It would be quite surprising were a majority of the current Court to agree.
Schuette is not the Court’s only race-related case this term. In Mount Holly v. Mount Holly Gardens Citizens in Action the Court is being asked to decide whether evidence of disparate impact can establish a violation of prohibited discrimination under the federal Fair Housing Act. Put another way, at issue is whether a Fair Housing Act claim may be established through statistical evidence of discriminatory impact without direct evidence of discriminatory effect. The Court agreed to decide this question before, in Magner v. Gallagher, but the case was settled before arguments could be heard. Mount Holly presents the Court with another chance. Unless progressive groups are again able to make the case go away, Mount Holly could limit the Fair Housing Act’s reach. The current Court is unlikely to be sympathetic to the disparate-impact claim, particularly given the lack of statutory basis for such claims.
The new term will also give the Court a chance to weigh in on the question of abortion, albeit indirectly. In one case, Cline v. Oklahoma Coalition for Reproductive Justice, the Court will consider whether states can prohibit the off-label use of abortifacient drugs, such as to terminate a pregnancy later in a term than is currently approved by the FDA. In the other, McCullen v. Coakley, the Court will reconsider the constitutionality of state-created buffer zones around abortion clinics. Over a decade ago, in Hill v. Colorado, the Court approved laws limiting protests outside medical facilities. Although the law was clearly targeted at anti-abortion protesters, the Court found such restrictions to constitute a permissible content-neutral restriction. The Massachusetts law goes farther, however, and is limited to abortion clinics, so it may have a harder time passing muster.
One of the most watched cases this term will be National Labor Relations Board v. Noel Canning, which will determine whether President Obama’s recess appointments to the NLRB (and, by extension, to the Consumer Financial Protection Bureau) were constitutional. In January, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit held the recess appointments were invalid because the Constitution does not authorize intrasession recess appointments; rather, recess appointments must be made during recesses between sessions. Two of the judges went farther, concluding that the plain text of the Constitution only allows recess appointments to be made when the vacancy to be filled arose during the recess.
Many commentators assailed the D.C. Circuit’s Noel Canning opinion when it was issued, alleging it was evidence of anti-regulatory sentiment on the D.C. Circuit. Yet two other federal appeals courts — the Third and Fourth Circuits — also concluded that Obama’s recess appointments exceeded constitutional bounds. Most expect the Supreme Court will rule the same way, albeit likely on narrower grounds than those proffered by the D.C. Circuit.
Over the past two terms the Roberts Court has repeatedly emphasized the importance of federalism, and the need to enforce constitutional limits on federal power. The Court concluded portions of the Voting Rights Act and Obamacare impermissibly intruded on state prerogatives and that the individual mandate exceeded the scope of the Commerce Clause (even if Chief Justice Roberts concluded it could be justified as a tax). Federalism concerns also supported the Court’s conclusion that the federal Defense of Marriage Act was not a permissible use of federal power. In Bond v. United States we’ll learn whether the Court is ready to apply the same careful scrutiny where the federal treaty power is concerned. In Bond, the federal government sought to prosecute a woman for attempting to poison her husband’s lover, alleging her actions violated federal law implementing the Chemical Weapons Convention. The key issue in the case is whether the ratification of treaties can be used to justify legislative acts that would otherwise exceed the scope of the federal government’s enumerated powers.
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.