On October 2, 2013, the Federalist Society hosted a Supreme Court Preview panel on the soon-to-begin October term. Jan Crawford, CBS News Chief Legal Correspondent, served as the moderator. The panel featured Michael A. Carvin, a partner at Jones Day; the Honorable Mary Beth Buchanan, the Ethics and Reputational Risk Officer at the United Nations; Megan L. Brown, a partner at Wiley Rein LLP; Neal K. Katyal, a partner at Hogan Lovells and professor at Georgetown University Law Center; and Professor Nicholas Quinn Rosenkranz of Georgetown Law. Each highlighted cases he or she believed were of significant importance.
During the introductions, Carvin told an anecdote in which Chief Justice Roberts approached him and jokingly chided him for having favored appointing Samuel Alito to the high court before Roberts. More seriously, Carvin commented that to the extent there is a trend this term, it is that the court will be examining structural protections in the Constitution as opposed to the Bill of Rights.
One pattern Buchanan said she saw was that the court will be looking at prior decisions that left various questions unanswered. This is significant since the membership of the court has changed since those prior decisions. Brown likewise said that stare decisis will be a major issue in the term, particularly in the First Amendment cases: Will the Roberts court rely on precedents? Will it continue what some call his court’s “incrementalist” approach of overturning its prior decisions?
For Katyal, this is a term in which the court is “getting back to law, to being lawyers”—instead of being overshadowed by hot-button social issues. He recommended that people read Crawford’s book Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court to see how Roberts and Alito acted when they were lawyers. This court, Katyal said, profoundly cares about law and getting it right.
In his general take on the upcoming term, Rosenkranz cautioned against trying to find any trend in the term. The court does not grant cases according to a theme. Such a theme emerges, if at all, only after the term is completed. One thing he did highlight about the term is that it includes three cases on the horizontal separation of powers, of the fundamental structure of government. It is very unusual to have three such cases, he said.
After the introductions, Michael Carvin began by discussing the racial preference case Schuette v. Coalition to Defend Affirmative Action. The issue in the case is whether a state violates the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions. The state involved is Michigan, which abolished affirmative action on the grounds that it is no longer necessary. According to Carvin, the Sixth Circuit decision in the case held that the state may not stop affirmative action because of the Fourteenth Amendment, even though the plain wording of the amendment would suggest the opposite. He claimed that the Sixth Circuit is one of the most lawless courts in the country. Defenders of affirmative action are relying on what he called “the redhead stepchild precedent” of Washington v. Seattle School District No. 1, even though that case dealt with laws that fostered affirmative action, not laws against it. He thought that the only interesting question in the case is whether the Supreme Court’s decision will be unanimous. Katyal chimed in that the Sixth Circuit is one of the most-overturned circuits, and he agreed that affirmative action should be left up to the legislatures.
Carvin turned next to Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., which addresses whether disparate impact claims (via the so-called “effects test”) are cognizable under the Fair Housing Act. He said that the DOJ is desperate for the court not to decide the case since it worries such disparate impact claims will be struck down. Carvin commented that even if one accepts the role of disparate impact in employment law, it doesn’t belong in the fair housing context since it would place dramatic handcuffs on municipalities, landlords, and banks.
According to the facts of the case, a municipality’s urban renewal efforts resulted in higher rents, which had a disparate impact of the original minority residents since minorities are disproportionately poorer than whites. The legal claim is that because of that disparate impact, such minorities should either receive racial preferences to live in the new housing (which Carvin termed a quota) or they should receive compensation. This would have a pernicious effect, he explained, since every time a landlord raises the rent it has the same sort of disparate impact—likewise in the case of banks that choose not to lend to the uncreditworthy. Crawford remarked that Justice Kennedy will be the “human jump ball” in the decision: “you never know which way he’ll go.”
Carvin then spoke about Mulhall v. Unite Here Local 355, which addresses whether an employer may give “things of value” to a labor union in exchange for it not going on strike or otherwise doing something else for the employer’s benefit. Although such trading is impermissible once a union is formed, what often happens is that before being certified, unions make "organizing agreements" with employers that, for instance, permit the union to employ card-check in return for promising not to strike. The constitutional question is what constitutes a “thing of value.” Carvin said that the case is important since a decision striking down such organizing agreements could increase hostility between unions and employers.
Mary Beth Buchanan was the next speaker. She discussed the criminal case Fernandez v. California. The question is whether, under Georgia v. Randolph, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of Fourth Amendment rights that cannot be overridden by a co-tenant. She wondered whether Justice Scalia would again take a strong stand in defense of Fourth Amendment rights. In Georgia, the court held that without a search warrant, police had no right to search a house where one resident consented to the search while another resident objected. According to Buchanan, the court grounded the rule on social norms regarding privacy expectations. She predicted that the court would either uphold the Georgia rule for find it unworkable.
She then turned to Kaley v. United States, in which the question is whether, when a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, the Fifth and Sixth Amendments require a pre-trial adversarial hearing at which the defendant may challenge the underlying charges. The facts of the case are that a couple who were accused of fraud took out a second mortgage to pay their attorneys. After they were indicted, the government seized those assets, something the government does frequently. A number of circuits have held that individuals are entitled to a post-indictment, post-seizure hearing, but it is unclear what the extent of that hearing may be: Can it be a mini-trial regarding the probable cause underlying the indictment, as the married couple is requesting in Kaley? Buchanan said she believed the court would not go that far but that it would clarify procedures for these sorts of challenges in general. Carvin commented that he thought these sorts of asset seizures are a threat to liberty and that there needs to be at least one level of due process review before trial.
The next panelist was Megan Brown, who gave her analysis of McCutcheon v. Federal Election Commission, which addresses the constitutionality of a law places an aggregate limit (approximately $120,000) on an individual’s contributions to all federal candidates every two-year election cycle. Will it be the next Citizens United? She thought not. The court, she said, will certainly look to the precedent set in the landmark campaign finance case Buckley v. Valeo, a very small part of which dealt with the aggregate limit cap. The argument against the cap is that the campaign finance world has changed: numerous loopholes have been closed, etc. Also, Buckley distinguished between contributions and expenditures but many people believe that the two are opposite side of the same coin, and that the distinction must be eliminated. Carvin predicted that the court would strike down the aggregate cap, which he believed makes no sense.
Brown also discussed McCullen v. Coakley, which regards the permissibility of buffer zones around abortion clinics. A law in Massachusetts makes it a crime to enter a thirty-five foot buffer zone around the entrance, exit, or driveway of abortion clinics. Petitioners object that it violates their First Amendment right to distribute pamphlets and the like. The court will look to the precedent set in Hill v. Colorado, a 2000 decision that upheld a similar law. Given that Justice Kennedy wrote a strident dissent, together with the change in the court’s makeup since then, Brown predicted the court will overturn Hill and strike down the Massachusetts law.
Neal Katyal spoke about his pro bono capital punishment case Kansas v. Cheever. The defendant in the case introduced expert testimony to the effect that because of his methamphetamine use he lacked the required mental capacity for capital murder. The state responded by presenting testimony from a psychiatrist who had evaluated him under court order—in other words, the state used the defendant’s words against him. The case tests the boundaries of the Fifth Amendment right against self-incrimination. Katyal noted that in the area of criminal law, the stereotype is that democratically-elected judges are pro-defendant, whereas appointed judges are pro-prosecution. Yet Justice Scalia not long ago gave a speech in which he said that, with regard to his rulings on the Fourth Amendment, “I’m the poster boy for the criminal defense bar.” Katyal said it is quite possible that the court will side with the defendant.
Northwest, Inc. v. Ginsberg regards the circumstances in which federal law trumps state law: Illinois law provides a cause of action that applies to a dispute over frequent flyer miles, but the petitioner claims that the federal Airline Deregulation Act preempts the state law’s cause of action. The petitioner appeals to Article VI of the Constitution, which makes the Constitution the supreme law of the land. Katyal noted that this is a case of great importance to businesses that operate in various states; they much prefer uniform federal law to preempt state laws, which can vary greatly. Katyal said that the Roberts court has tended to support business interests (in contrast with Judge Richard Posner, who has recently been coming out on the side of consumers in class actions), but it is not really a politically left or right thing. The fundamental question is whether Congress intended the Airline Deregulation Act to preempt state causes of action. According to Katyal, the trend in courts has been to favor preemption generally.
Katyal then turned to the upcoming two patent cases, Highmark Inc. v. Allcare Health Management Systems and Octane Fitness v. Icon Health & Fitness Inc., which Carvin said were significant since the patent system is close to broken: “The PTO [Patent and Trademark] office will patent a ham sandwich—or better, a grilled cheese sandwich with the corners cut off.” The main question in the patent cases is whether the plaintiff must pay the defendant’s attorneys’ fees if the plaintiff failed to sufficiently perform due diligence—i.e., in what circumstances there is a penalty for frivolous litigation. 35 U.S.C. § 285 provides an exception to the “American Rule” that plaintiffs and defendants pay only their own costs in litigation, regardless of who wins. Section 285 requires that there be “exceptional circumstances” for the prevailing party to be forced to pay the other party’s fees. According to Katyal, the Federal Circuit has been watering down Section 285. As a result, industry is increasingly concerned that they are not being shielded from frivolous suits. Katyal said that if businesses, whose innovations drive the American economy, believe they are being insufficiently protected, they will increasingly move offshore. Katyal noted that the Supreme Court is getting increasingly comfortable with entering the patent area, and in particular in overturning the Federal Circuit.
Nicholas Rosenkranz was up next. He spoke about Bond v. United States, which has lurid facts. A woman spread chemical poison on a car in order to harm her husband, and an ambitious U.S. Attorney charged her with violating the Chemical Weapons Convention Implementation Act. The defendant questions the authority of Congress to regulate chemical weapons, something that is not included in the list of Congress’ powers in Article I, Section 8 of the Constitution. The government’s response is that the lack of inclusion does not matter since the U.S. entered into a chemical weapons treaty and Congress has the power to enforce any treaties. This, in fact, is what Justice Holmes seemed to rule in Missouri v. Holland in a short, five-page decision that Rosenkranz said included no reasoning whatsoever. Rosenkranz commented that this power allows a potential end-run around limited Congressional authority. Do the Constitution’s structural limits on federal authority impose any constraints on the scope of Congress’ authority in this regard? He said the court’s decision is hard to predict. The justices could conceivably dodge the issue in many ways—e.g., by construing the statute or treaty narrowly. Still, the court did take up the case, which would not be interesting without the structural issue. Rosenkranz emphasized that the decision could be a rare instance in which the court addresses the scope of each branch’s power. It would require an examination of first principles.
Another such case addressing the scope of federal power is Noel Canning v. NLRB, which stems from President Obama’s having made an appointment to the National Labor Relations Board during what he claimed was a Senate recess. The Senate was in fact holding pro forma sessions at the time. The case concerns three questions: 1) Whether the president’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate; 2) whether the president’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess; and 3) whether the president's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.
Rosenkranz commented that it is easy to imagine what the Framers were thinking when they gave the president power to make appointments during recesses: the president must have the ability to make important appointments under exigent circumstances, such as the appointment of a general during war. The D.C. Circuit opinion in the case focused on the “the” in “the recess” clause and interpreted that as meaning the clause refers to the recess between two sessions—i.e., an inter-session not an intra-session recess. For Rosenkranz, this is a dramatic holding. Still more dramatic was the court’s holding that the president may make such an appointment during a recess even if the vacancy occurred before the recess. This shifts the balance of power strongly in favor of the president, Rosenkranz said. This is highly important since appointments have traditionally been a major area for bargaining between the president and Congress. Congress' ability to use a major bargaining chip would be reduced. Rosenkranz concluded that the president’s appointment in the case at hand was clearly unconstitutional since the Senate said it was in session.