Expect a Supreme Court Decision on Recess Appointments Soon

The Supreme Court term will likely end next week, but there are still more than a dozen cases awaiting a ruling. Among those are several potentially major decisions on issues like the contraceptive mandate, free speech, and presidential recess appointments. Thursday is the next decision release day, leaving just a few more days in June for the court to unload its large pile of remaining opinions. Or, in rare cases, postponing a case until next term. 

In all, the court has yet to issue decisions on 13 cases, or 14 if you count two cases that both dealing with warrantless cell phone searches separately. (Update: with Thursday's three unanimous decisions, the court now has either 10 or 11 opinions left, again depending on how you're counting. We've updated the list below with the short version of each of those decisions.) 

So the end of term crunch is going to be a busy one. Here a rundown of the remaining cases, and what's at stake in each one.

The Big Ones 

Sebelius v. Hobby Lobby Stores & Conestoga Wood Specialties Corp v. Sebelius.These two cases, considered together, challenge the health care reform law's contraceptive mandate. There are two broad questions at issue here: whether private businesses have the right to exercise their freedom of religion either under the Constitution or the Religious Freedom Restoration Act, and if so, whether the contraceptive mandate violates that religious freedom. Those are both big questions with implications for the more than 40 other challenges to the contraceptive mandate working their way through the courts. However, as we noted in our recap of the oral arguments, the court could end up issuing a much narrower ruling. Justice Ginsburg has said that the Hobby Lobby decision will be one of the last released by the court this month. 

National Labor Relations Board v. Noel Canning. This case is about recess appointments. It shouldn't be exciting, but it has become a major battle between the two other branches of government. Basically, conservatives are hoping for — and, to some extent, seem likely to get — a Supreme Court decision against President Obama's recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau. That's because Obama used his recess appointment power even though Republican legislators were holding "pro forma" sessions over the holidays just to prevent the president from sidestepping their obstruction of his nominees. The case could potentially limit the recess appointment power in several other ways, if the justices allow a very narrow interpretation of the recess appointment power handed down by the D.C. Circuit court to stand. MSNBC has a good primer on the context of this case, here. 

Privacy, Patents, and Copyright 

The court took on several cases this year dealing with the application of older laws to newer technology: smartphones, software, and internet-transmitted broadcast television: 

Riley v. California & United States v. Wurie. Another pair of cases on another important issue: warrantless searches of cell phone contents by law enforcement officers during the course of an arrest. In a decision handed down before cell phones were in everyone's pocket, the court gave officers the right "from incident to arrest" to a search a subject in  “the area into which he might reach." The intent was to prevent the destruction of evidence and to protect the safety of the officers. The court now has to decide if — and to what extent — that authority applies to the vast amount of information stored on a personal cell phone. Here's our recap of the oral arguments for these cases. 

Alice Corp. v. CLS Bank International. Although, as SCOTUSblog notes, the justices seem very unlikely to issue a major decision on software patent law here, the case is at least an opportunity for the Supreme Court to address a longstanding question of whether the Patent Act allows for software patents. A narrower ruling would favor companies with a lot of patent claims. But several major companies, including Google, are hoping that the court will place limits on what kinds of software programs are eligible, which would help them fend off those ever-present "patent troll" lawsuits. (Update: the Supreme Court issued a unanimous decision on this case on Thursday, ruling that Alice Corp's patent claims are ineligible, "because the claims are drawn to a patent-ineligible abstract idea." Although experts on the subject matter are still combing through the details of the decision, it looks like the case indeed provides useful guidance — though no huge breakthroughs — on when a piece of software is eligible for a patent. The Alice decision is here.) 

American Broadcasting Companies v. Aereo. Aereo is a subscription service that allows users to stream over-the-air broadcast television on their computers and other devices. ABC believes that such a retransmission is a public performance of their content, and therefore a violation of copyright. Aereo says their service is really more of a technology rental — users pay for access to thousands of tiny TV antennas scattered across a market, in order to access and record the same content they'd be able to get by purchasing an individual digital antenna. If the court sides with Aereo — allowing it to continue to bypass broadcast fees — it could have huge implications for the business model of local and national broadcast TV. 

The EPA 

Utility Air Regulatory Group v. EPA (and other, similar cases.) The justices are considering whether the EPA has the authority under the Clean Air Act to regulate stationary sources of emissions, like coal plants. But as the New York Times notes, the justices gave little indication that they were interested in issuing a major decision on this case. For one thing, the justices seemed to believe that even if they struck down the specific provisions challenged in this case, the agency would still have other ways of maintaining the same programs. 

First Amendment 

McCullen v. Coakley. This is the first time the Supreme Court has heard a case on abortion clinic "buffer-zones" since 2000, when the court upheld a Colorado law giving patients a protester-free "bubble." Massachusetts's law, a response to attacks on patients and clinic employees in the state, puts a 35-foot buffer zone around abortion-providing clinics there. Using a grandmotherly protester as its face, anti-abortion groups have mounted a challenge to the law on First Amendment grounds. Although it's a bad idea to try and predict these things, the oral arguments on this case indicate that the justices are split, with the balance possibly going towards sympathy for the challengers. 

Lane v. Franks. The question in this case is whether the First Amendment prohibits the government from firing a public employee who truthfully testifies as part of a subpoena that goes beyond his normal duties as an employee. Based on the oral arguments, the justices seem inclined to rule in favor of the man who was fired, Edward Lane, who exposed fraud at a program run out of an Alabama community college. The justices will also consider a second, related question: whether the target of Lane's lawsuit — the former president of the college — is immune from liability in the suit because he works for the state. (Update: the Supreme Court issued a unanimous decision in this case on Thursday, affirming that "The First Amendment...protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities." Read the full opinion here.) 

Business, Banks and Labor 

Several of the remaining cases pertain to financial crime, unions, and shareholders. Here they are, roughly in order of interestingness: 

Harris v. Quinn. The Supreme Court could hand down a decision in this case with extensive consequences for public sector unions. Illinois's home care workers are represented by the SEIU under state law, and all workers pay small dues to the union for that representation. A group of home care workers — with the help of the conservative National Right to Work Legal Defense Foundation, sued to stop that practice on First Amendment grounds. Interestingly, as Mother Jones noted, Justice Antonin Scalia might end up siding with the unions on this case. 

Halliburton v. Erica P. John Fund. This case pits Halliburton against a group of its shareholders. As Reuters explains, several other major companies will be watching the case to see if the Supreme Court ends up siding with Halliburton, because it could impact other class action suits brought by shareholders who believe companies misled them about their stock, and lost money because of those misleading statements. Essentially, the court will decide what standards must be met before such a suit is granted class action status. 

Loughrin v. United States. What do federal prosecutors have to prove in order to convict someone on federal bank fraud charges? That's the question in this case. Loughrin's legal team argues that the government must prove an intent to defraud the banks issuing checks used to purchase a little over $1,000 at Target stores. AsReuters explains, Loughrin argued that Target, but not the banks, suffered a loss as a result of his crime. 

Fifth Third Bancorp v. Dudenhoeffer. This case could potentially resolve a split among federal courts on the issue of a presumption of prudence for fiduciaries under the Employee Retirement Income Security Act (ERISA). In slightly more plain language: members of the Fifth Third Bancorp's 401(k) plan have claimed that its fiduciaries committed a violation by continuing to offer company stock through the plan, even though the company "switched from being a conservative lender to a subprime lender," meaning that its stock was overvalued. This case is a little bit in the weeds, but SCOTUSblog has some good resources if you're interested. 

United States v. Clarke. This case has to do with how district courts enforce an IRS summons when a recipient objects to the summons. Essentially, the question is about when a district court decides that an objection merits an evidentiary hearing, and you are probably already bored with this summary. Once again, always and forever, SCOTUSblog has more. (Update: the Supreme Court issued a unanimous opinion in this case on Thursday, holding that a taxpayer has a right to an examination of the reasons behind an IRS summons "when he points to specific
facts or circumstances plausibly raising an inference of
bad faith." The decision is here).