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U.S. Supreme Court term in review: A harbinger of things to come

By Erwin Chemerinsky

Erwin ChemerinskyIn many ways, the Supreme Court’s October 2013 Term fits a familiar pattern. The court decided 68 cases after briefing and oral argument – a bit fewer than the 73 from the prior term and a bit more than the 65 cases from two years ago. Once more, Justice Anthony Kennedy was the justice most often in the majority, being in the majority in 94 percent of the cases decided. Once more, Justice Kennedy was most often in the majority in the 5-4 decisions, being in the majority in every 5-4 decision of the term.

Yet, in other ways this term was different. Sixty-five percent of the cases were decided unanimously. In comparison, in October Term 2012, 49 percent of the decisions were unanimous and in October Term 2011, 44 percent were unanimous.  This year, there were only 10 5-4 decisions (14 percent), compared with 23 (29 percent) the year before.

What accounts for this greater unanimity? Sometimes the court achieved unanimity by not deciding the important issues before it. For example, in Executive Benefits v. Arkison, the court faced an important question for the federal courts as to whether a bankruptcy court or a magistrate judge can issue a final judgment when there is a state law claim. Although the lower courts are divided and the issue was briefed and argued, the court did not decide it, instead resolving the case by finding that in this instance there had been adequate review by a federal district court. On the last day of the term, the court granted review in another case for next year, Wellness International Network v. Sharif, posing the same issue it did not resolve in Arkison.

In Bond v. United States, the court was confronted by the question of the scope of Congress’ power to enact laws to implement treaties. The court did not decide that issue, but instead interpreted the statute did not apply. These issues remain and will need to be decided in future cases where the court almost certainly will not be unanimous.

Sometimes, the unanimous result is misleading because the court was deeply divided as to the reasoning. In Noel Canning v. NLRB, the Supreme Court unanimously found that President Obama’s recess appointments to the National Labor Relations Board were invalid. The majority ruled narrowly on the ground that the Senate was not in recess in this instance, but four justices strongly objected and wanted to impose great restrictions on the power to make recess appointments.

Focusing on the unanimity also obscures the fact that many of the most important cases – in terms of their impact on the law and on society – were divided decisions. Predictably, there were 5-4 rulings in cases involving the death penalty, separation of church and state, religious exemptions for corporations, campaign finance and rights of those who don’t want to support a public employees’ union. It is a mistake to think that the court has discovered consensus; Justice Antonin Scalia is just as conservative and Justice Ruth Bader Ginsburg is just as liberal as ever.

Perhaps most of all what we saw this term were narrow rulings that made it easier to gain unanimity, but rulings that open the door to significant litigation. In this way, the October Term 2013 likely is a harbinger of things to come.

First Amendment: Religion

The most high profile case of the term, Burwell v. Hobby Lobby, involved the contraceptive mandate under the Patient Protection and Affordable Care Act. A federal law required that the Department of Health and Human Services promulgate regulations requiring that health insurance provided by employers include preventive health care coverage for women. These regulations require that employer provided insurance include contraceptive coverage for women. Although religious institutions and nonprofit corporations affiliated with religious institutions can exempt themselves from this requirement, for-profit companies must comply.

Hobby Lobby, for example, is a corporation with hundreds of stores and thousands of employees. It objected to having to provide insurance coverage for certain forms of contraception that it believed acted after conception. In a 5-4 decision, the Supreme Court ruled in favor of Hobby Lobby and held that it violated the federal Religious Freedom Restoration Act to require a close corporation to provide insurance coverage for contraceptives that it says violate its religion.

The case raises countless questions that now will be litigated. The holding focused on close corporations, but the majority’s reasoning would seem to encompass all corporations. Can all corporations bring challenges based on religious beliefs? What is enough for a substantial burden of religious beliefs? What if the owners of a company are Christian Scientists and object to all medical care on religious grounds? What other federal laws might companies seek an exemption from based on their religious beliefs? Justice Samuel Alito, writing for the majority, said that there would not be a basis for challenging statutes prohibiting race discrimination, but what about claims of a right to discriminate based on gender or sexual orientation?

The other important case with regard to religion and the First Amendment was Town of Greece v. Galloway.  From 1999 to 2009, the town board in Greece, N.Y., each month invited a clergy member to deliver a prayer before its meetings. Except for four months in 2007, only Christian clergy were invited and usually the prayers were Christian in their content.

In a 5-4 decision, without a majority opinion, the court concluded that this did not violate the Establishment Clause. Justice Kennedy, joined by Chief Justice John Roberts and Justice Alito, wrote a plurality opinion that stressed the long history of legislative prayers, including “sectarian” prayers. He said that such prayers are allowed, absent a pattern of prayer over time that proselytizes or denigrates religion or reflects an impermissible government purpose. Justice Clarence Thomas concurred and concurred in the judgment, joined in part by Justice Scalia. Writing for just himself, Justice Thomas said that state and local governments never can violate the Establishment Clause; he believes that this was a constitutional provision meant just to limit the federal government. In a part of the opinion joined by Justice Scalia, Justice Thomas said that at most, the government violates the Establishment Clause only if it legally coerces religious participation.

The practical effect of this decision will be a tremendous increase in prayers at government meetings of all sorts – school board, park commission, town board, city council, legislative committee – and often they will be Christian prayers.

First Amendment: Speech

In McCullen v. Coakley, the court unanimously struck down a Massachusetts law that created a 35-foot buffer zone around reproductive health care facilities. The only individuals allowed in this area are patients, employees, law enforcement personnel and those needing to cross the area to get to an adjacent facility. Chief Justice Roberts, writing for the majority, held that the law was unconstitutional because it restricted speech on public sidewalks and other traditional public forums and was not sufficiently narrowly tailored. Justice Scalia, joined by Justices Kennedy and Thomas, and Justice Alito wrote separate opinions concurring in the judgment and would have gone much further in limiting buffer zones around reproductive health care facilities.

This, too, is likely to lead to litigation. In recent years, after the court found a right to protest at military funerals, governments created buffer zones around cemeteries and funeral homes. For example, a federal law creates a 300-foot buffer zone around military funerals. Forty-one states adopted laws creating buffer zones around cemeteries and funeral homes. Other laws create buffer zones around places of worship, such as synagogues, churches and mosques. 

In all of these instances, peaceful protests are permitted, but privacy is protected by being sure that the speech does not disrupt activities or intrude on those present. Now, however, the constitutionality of such buffer zones is in doubt because they, too, restrict speech on public sidewalks. They can and will be challenged on the grounds that they are not sufficiently narrowly tailored.

In McCutcheon v. Federal Election Commission, the court in a 5-4 decision declared unconstitutional the aggregate contribution limits created by the McCain-Feingold, Bipartisan Campaign Finance Reform Act. Specifically, the court invalidated a part of the act which provides that an individual contributor cannot give more than $46,200 to candidates or their authorized agents or more than $70,800 to anyone else in a two-year election cycle. Within the $70,800 limit, a person cannot contribute more than $30,800 per calendar year to a national party committee.

Chief Justice Roberts, joined by Justices Scalia, Kennedy and Alito, wrote a plurality opinion finding that these provisions violate the First Amendment. Chief Justice Roberts explained that limits on contributions are allowed solely to prevent corruption and the appearance of corruption. He concluded that the aggregate contribution limits do not further these goals and are thus unconstitutional. Justice Thomas concurred in the judgment and argued that all contribution limits should be deemed to violate the First Amendment and urged the Court to overrule Buckley v. Valeo (1976), which articulated the framework for campaign finance laws that has been followed for the last several decades. 

This case is likely to lead to challenges to federal, state and local laws limiting campaign contributions, on the grounds that their size is too small and that the restrictions, such as on corporations and unions, violate the First Amendment.

Fourth Amendment

In Riley v. California, the Supreme Court held that absent a warrant or exigent circumstances, police cannot examine the contents of a person’s cell phone as part of a search incident to an arrest. Chief Justice Roberts, writing for a unanimous court, stressed the great privacy interests that people have in the contents of their cell phones. He noted that cell phones can include millions of pages of text and thousands of photographs, including all aspects of the “privacies of life.” He pointed out that cell phones can contain material from a long period of time and give access to cloud or web services where even more of a person’s information can be found. The court said that it previously held that police can do a search incident to arrest to protect the safety of the officers and to prevent the destruction of evidence; neither of these interests justify looking at the contents of a cell phone. 

The decision is very important in recognizing the importance of informational privacy, especially with regard to new technology. It will limit the ability of police to look at the contents of a person’s laptop or tablet or phone unless there is a warrant or exigent circumstances.

In Navarette v. California, the Supreme Court held, 5-4, that police may pull over a car based on an anonymous 911 call reporting that the car was driving erratically. In an opinion by Justice Thomas, the court said that the government’s interest in stopping people from driving while impaired by alcohol or drugs justifies allowing such stops. Justice Scalia, joined by Justices Ginsburg, Sonia Sotomayor, and Elena Kagan, wrote a dissent and would have required that the police themselves observe erratic driving to justify pulling over a car. The dissent feared that it now will be too easy for someone to have a car pulled over just by making an anonymous 911 call.

Intellectual Property

There were nine decisions involving patents, copyright, and trademark. Six involved patent issues and in five, the Supreme Court overturned the rulings of the United States Court of Appeals for the Federal Circuit.

The most high profile intellectual property case of the term was American Broadcasting v. Aereo. Aereo created a business where, for a fee, it allowed its customers to access television broadcasts on their cell phones, tablets and laptops. Aereo claimed that all it was doing was taking publicly available signals and then making them available for those who wanted its service. But the court, in a 6-3 decision, concluded that this was exactly what Congress amended copyright laws to prevent cable companies from doing, and Aereo’s business was no different.

In another high profile IP case, in Petrella v. Metro-Goldwyn-Mayer, a case involving the movie "Raging Bull," the court held that laches cannot be used as a defense in a copyright infringement suit. Those claiming copyright infringement may seek damages for harms suffered during the statute of limitations period; the defendant cannot have such suits dismissed on the grounds that the plaintiff waited too long to sue.


These, of course, are just some of the most important decisions of October Term 2013. October Term 2014, which begins on Monday, Oct. 6, could well be a year filled with decisions on the most divisive constitutional issues: abortion, affirmative action and marriage equality. It already has important cases concerning religious freedom, the Fourth Amendment and federal jurisdiction. It is an amazing time for the United States Supreme Court.

Erwin Chemerinsky is a distinguished professor of law, a Raymond Pryke Professor of First Amendment Law and dean at the University of California Irvine School of Law.