History > 2014 > USA > U.S. Supreme Court (I)

 Kali Ciesemier

The Opinion Pages | Letters

Rulings on Abortion and Appointment

NYT

JUNE 27, 2014

http://www.nytimes.com/2014/06/28/opinion/rulings-on-abortion-and-appointment.html

Execution in Arizona

Is Approved by Justices

 

JULY 22, 2014

The New York Times

By ADAM LIPTAK

WASHINGTON — The Supreme Court on Tuesday allowed the execution of an Arizona inmate to proceed, lifting a stay from a federal appeals court that had been based on the secrecy of the state’s lethal-injection protocol.

The Supreme Court’s order was three sentences long and said little more than that the lower court had been wrong to stop the execution.

But the move was consistent with the Supreme Court’s reluctance to intercede in the growing turmoil in the capital justice system caused by drug shortages and boycotts that have made it difficult for states to obtain the chemicals for lethal injections.

States have responded to the shortages by using new chemicals, some obtained from lightly regulated compounding pharmacies. Lawyers for condemned inmates have said they need information about the new protocols in order to challenge the execution methods as violating the Eighth Amendment’s ban on cruel and unusual punishment.

The Arizona case concerned Joseph R. Wood III, who is on death row for the 1989 murders of his estranged girlfriend, Debra Dietz, and her father, Eugene Dietz. He is scheduled to be executed on Wednesday.

As Mr. Wood’s execution date approached, his lawyers asked corrections officials for information about their plans. The officials said they meant to use two chemicals, midazolam and hydromorphone, but they refused to identify the manufacturers or suppliers of the chemicals or to describe the qualifications of the personnel who were to administer them.

On Saturday, a divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled that the state’s response might have violated Mr. Wood’s rights under the First Amendment to have access to the information.

“More information about the drugs used in lethal injections can help an alert public make better informed decisions about the changing standards of decency in this country surrounding lethal injection,” Judge Sidney R. Thomas wrote for the majority. He added that the execution could proceed once the state turned over the information.

In dissent, Judge Jay S. Bybee called the majority’s identification of a First Amendment right of access to information in these circumstances “a dramatic extension of anything that we or the Supreme Court have previously recognized.” Even if such a right existed, he added, it would not justify a stay of execution.

“The information already released by the state enables informed debate about the lawfulness and propriety of Arizona’s two-drug cocktail,” Judge Bybee wrote.

A version of this article appears in print on July 23, 2014,
on page A14 of the New York edition with the headline: Execution In Arizona Is Allowed By Justices.

    Execution in Arizona Is Approved by Justices, NYT, 21.7.2014,
    http://www.nytimes.com/2014/07/23/us/
    execution-in-arizona-is-approved-by-justices.html

The War on Workers
 

The Supreme Court Ruling on Harris v. Quinn

Is a Blow for Unions

 

JULY 2, 2014

The New York Times

The Opinion Pages | Op-Ed Contributors

By CYNTHIA ESTLUND and WILLIAM E. FORBATH

UNIONS have never been uncontroversial in American society, but the battles over labor have grown fiercer in recent years: Witness the fight over public-employee unions in Wisconsin, or the 2012 decision by Michigan voters to join the ranks of “right to work” states.

On Monday a 5-to-4 majority of the Supreme Court fired its own salvo in the war on unions. Though its decision in Harris v. Quinn was narrow, saying that, in some cases, unions could not collect fees from one particular class of public employees who did not want to join, its language suggests that this may be the court’s first step toward nationalizing the “right to work” gospel by embedding it in constitutional law.

The petitioners in Harris were several home-care workers who did not want to join a union, though a majority of their co-workers had voted in favor of joining one. Under Illinois law, they were still required to contribute their “fair share” to the costs of representation — a provision, known as an “agency fee,” that is prohibited in “right to work” states.

The ability of unions to collect an agency fee reflects a constitutional balance that has governed American labor for some 40 years: Workers can’t be forced to join a union or contribute to its political and ideological activities, but they can be required to pay for the cost of the union’s collective bargaining and contract-administration activities.

The majority in Harris saw things differently. Making workers pay anything to a union they oppose is in tension with their First Amendment rights — “something of an anomaly,” in the words of the majority. But the real anomaly lies in according dissenters a right to refuse to pay for the union’s services — services that cost money to deliver, and that put money in the pockets of all employees.

Once selected by a majority of workers in a bargaining unit, a union becomes the exclusive representative, with a duty to fairly represent all of them. That is the bedrock of our public and private sector labor laws.

Unless everyone is required to pay for those services, individual workers can easily become “free riders,” taking the benefits of collective representation without paying their fair share of the costs. Not only dissenters but any employee who wants to save a buck can “free ride.” The net result may be that the union cannot afford to represent workers effectively, and everyone suffers.

Consider the home-care providers at issue in Harris. These workers, who are in one of the fastest-growing and lowest-paid occupations in America, are generally employed solely by individual customers, even when their wages came from public funds like Medicaid. Alone, they were stuck with low pay and meager benefits, and states faced labor shortages and high turnover.

Several years ago Illinois, like several other states, took on the role of joint employer, along with individual customers, of the care workers. That enabled them to vote on joining a union. They did so, and as a result nearly doubled their wages and secured state-funded health insurance, as well as training and safety provisions.

All of Illinois’s in-home care providers benefit from union representation. Until Monday, all were required to pay a modest fee for those services. But now workers can “free ride.”

While a majority declined to strike down agency-fee arrangements for “full-fledged” public employees, as the petitioners had requested, and as unions had feared, the majority makes clear that such fees now rest on shaky constitutional ground, at least in the public sector, and are vulnerable to broader attack in the future.

The ability of unions to survive rests on whether they solve the “free rider” problem. That is why mandatory fees have been a critical battleground for unions and their antagonists for over 70 years. The antagonists have won many of those battles, beginning with the state-level “right-to-work” laws that bar any mandatory union fees.

The First Amendment framework used by the “right to work” movement — and now by much of the Supreme Court — to mount this attack is something old masquerading as something new. Similar arguments were made during the 19th century, when rising inequalities between individual workers and increasingly large-scale industrial employers led workers to invent unions and collective bargaining. For decades, employers found a willing ally in the court: When Congress or state legislatures passed laws protecting workers’ freedom to organize and bargain collectively, the court struck them down in the name of “liberty of contract.”

This changed in the 1930s, when the New Deal court finally conceded the constitutional bona fides of “industrial democracy” through majority rule. But now the court’s conservative majority has taken a bold step backward, recasting the individualist crusade as a battle between compelled speech and the right to refrain from speech — between individual dissent and collective compulsion. But in substance it is the same old fight between the right of workers to bargain collectively and the individual liberty of contract.

Unions are already reeling. At a time when workers are losing economic ground, we should be looking for ways to strengthen their ability to join with co-workers and bargain collectively to improve their lot. Instead, the court in Harris sided with those who seek to weaken it further.

 

Cynthia Estlund is a professor of law at New York University. William E. Forbath is a professor of law and history at the University of Texas, Austin.

A version of this op-ed appears in print on July 3, 2014, on page A23 of the New York edition with the headline: The War on Workers.

    The War on Workers, NYT, 2.7.2014
    http://www.nytimes.com/2014/07/03/opinion/
    the-supreme-court-ruling-on-harris-v-quinn-is-a-blow-for-unions.html

Compromise at the Supreme Court

Veils Its Rifts

 

JULY 1, 2014

The New York Times

U.S. | News Analysis

By ADAM LIPTAK

WASHINGTON — Two very different group portraits of the Supreme Court emerged this term, one familiar and one unexpected.

The familiar was on display Monday in two 5-to-4 decisions that were split by angry divisions and seemed to advance a conservative agenda.

But the more finely drawn portrait takes account of the 67 decisions in argued cases this term. The court was unanimous about two-thirds of the time, and those cases revealed signs of compromise and restraint, which many Supreme Court specialists said was a testament to the leadership of Chief Justice John G. Roberts Jr., 59.

“The chief has done a remarkable job this term navigating divisions and dodging the most controversial of issues,” said Lisa S. Blatt, a lawyer with Arnold & Porter who argues frequently before the court.

Chief Justice Roberts, who completed his ninth term, does not get his way by backslapping or horse-trading, but by writing savvy opinions, making strategic opinion assignments to the other justices and sometimes working to protect the Supreme Court from accusations that it is a political institution.

Chief Justice Roberts’s handiwork was apparent this term in major rulings on abortion protests and cellphone searches, both unanimous decisions.

His majority opinion striking down buffer zones around Massachusetts abortion clinics was much narrower than his earlier First Amendment jurisprudence would have suggested, narrow enough to attract the votes of all four liberal justices. And he wrote a muscular opinion for a unanimous court requiring the police to get warrants before they search the cellphones of people they arrest.

All of the justices are sensitive to the accusation that they are motivated by politics.

The current set of nine justices is, for the first time in history, firmly divided along partisan lines, with all of the Republican appointees more conservative than all of the Democratic ones. Their efforts to find common ground may have been partly an attempt to counter the charge that they are, in Justice Stephen G. Breyer’s words, “nine junior varsity politicians” motivated by partisan agendas better left to elected officials.

But the number of unanimous decisions — a record for the Roberts court and the highest percentage since at least 1953 — masked some powerful disagreements, as the justices often agreed only on the bottom line, as was true in the abortion protest and recess appointment cases.

What matters most in Supreme Court decisions is what legal principle commanded a majority, not which side won. Lower courts will apply those principles, and the divisions about the reasoning supporting decisions can be vital. They mattered so much to Justice Antonin Scalia that he all but created a new judicial genre — he wrote three furious concurrences.

The Roberts court’s conservative majority has not retreated from several of its core concerns. It remains skeptical of campaign finance regulations, efforts to drive religion from public life and race-conscious decision-making by the government. It remains solicitous of corporate rights and of efforts to curb union power.

When the chief justice was in the majority in such cases, most decided by narrow margins, another side of him emerged. In all of them, he wrote or joined opinions that claimed to be modest extensions of existing law but may well portend wrenching change.

But the 5-to-4 splits dropped, to just 10. Of those, six featured the classic alignments, with Justice Anthony M. Kennedy joining either the court’s four more liberal members or its four more conservative ones. He leaned right two-thirds of the time.

But in a great many cases the justices found ways to agree. This was the fourth term together for the nine current justices. Its newest members, Justices Sonia Sotomayor and Elena Kagan, have grown increasingly comfortable in their roles, and all of the justices seemed, mostly, eager to find common ground with their colleagues.

It did not hurt that the term lacked huge and profoundly divisive cases like those that ended the last two terms. In June 2012, months before the presidential election, the court narrowly upheld the Affordable Care Act. In June 2013, the court issued one major ruling on same-sex marriage but kicked an even bigger question down the road.

The story of the current term was somewhat anticipated in a book published last year by three political scientists: Pamela C. Corley, Amy Steigerwalt and Artemus Ward. It was called “The Puzzle of Unanimity: Consensus on the United States Supreme Court.”

It is, after all, not obvious that the justices should ever all agree. The issues that reach them are complicated and usually susceptible to multiple plausible answers. Lower courts have almost always given varying answers. The justices themselves have differing judicial philosophies.

But the justices know that unanimous decisions have more force, which is why they worked hard to issue them in Brown v. Board of Education, the 1954 school desegregation case, and United States v. Nixon, the 1974 decision that hastened the end of the Nixon administration.

Lower courts are less likely to follow divided decisions. But, and here is the bad news for the current court, there are two ways to be divided. “While dissents are clearly detrimental to the authority of majority opinions, concurrences can be equally damaging,” the “Puzzle of Unanimity” authors wrote. “In fact, if a decision of the court is accompanied by a concurrence that does not support the majority opinion, lower courts are less likely to comply with it.”

While the court’s level of agreement this term was authentically high, the numbers overstate the case. “A lot of the unanimity is ersatz,” said David A. Strauss, a law professor at the University of Chicago.

It is not every day, for instance, that you see a Supreme Court justice reading an angry concurrence from the bench, as Justice Scalia did last week in the recess appointments case. (Even oral dissents are rare, issued perhaps four times a term.)

Justice Scalia was similarly dismissive of the majority opinion in the unanimous case on abortion clinic buffer zones, issued the same day, though he concurred in the result. “I prefer not to take part in the assembling of an apparent but specious unanimity,” he wrote.

The majority opinion was written by Chief Justice Roberts and joined by the court’s four liberals, an exceedingly unusual alignment. It was the same alignment that saved the Affordable Care Act in 2012.

Justice Scalia was no happier about two other narrow Roberts opinions for the same coalition plus Justice Kennedy, one avoiding a major decision on the scope of congressional power in a treaty case, the other rejecting a request to do away with securities fraud class actions.

Both times, Justices Scalia, Clarence Thomas and Samuel A. Alito Jr. would have gone much bigger, and they refused to adopt the majority’s reasoning in either case. But nonetheless the vote counts said the decisions were unanimous.

The court has the luxury, with very few exceptions, of picking the cases it will decide. It has studiously avoided accepting a Second Amendment case since it established an individual right to own guns in 2008 and applied it to the states in 2010. It flirted with hearing an abortion case this term but thought better of it.

All of this means that rates of agreement must be judged against the texture of the term. Almost 10 percent of the court’s docket was made up of patent cases, for instance, and all of those decisions were unanimous.

“The higher unanimity rate might reflect an increase in cases with low ideological stakes,” said Lee Epstein, a law professor and political scientist at Washington University in St. Louis. “This term, about 36 percent involved questions of rights and liberties, compared with 57 percent in the three previous terms.”

Justice Kennedy was most often in the majority, though not by much. He was rivaled by Chief Justice Roberts.

But Justice Kennedy was the only justice in the majority in all of the 5-to-4 decisions. The six that featured the classic ideological splits were telling.

Justice Kennedy joined the court’s conservative wing in major cases allowing more money in politics, more religion in official settings, religious liberty rights for corporations and limits on union power. He joined the court’s liberals in limiting the use of the death penalty and sustaining the use of a federal gun control law to curb so-called straw purchases.

Business groups had a good if relatively quiet year at the court. The U.S. Chamber of Commerce filed briefs in 17 cases decided by signed opinions and was on the winning side 13 times. “As in past terms, the court continued to curb the worst excesses of the plaintiffs’ bar and overreach by regulators,” said Lily Fu Claffee, general counsel to the group. “We consider that a great year.”

The administration suffered stinging losses in several major cases, including ones on campaign finance, recess appointments and the contraception coverage put in place under the Affordable Care Act. The court “rejected Obama’s position in nearly all the high-profile cases of the term,” said Adam Winkler, a law professor at the University of California, Los Angeles.

But the administration still won 56 percent of the cases in which it was a party, compared with 39 percent last term, Professor Winkler said. It did even better in cases in which it had filed supporting briefs, ending up on the winning side 70 percent of the time.

Some of this may reflect decisions to take fairly conservative positions, notably in the case on opening town board meetings with a prayer. But the administration did well in major environmental cases in which it was not obvious that it would prevail.

The current term may have been a chance for the court to catch its breath, said Ms. Blatt, the lawyer with Arnold & Porter. “They are either resting up and saving their fire for all of the abortion, guns and gay marriage cases in the lower courts,” she said, “or the cases this term were simply not as controversial as in the past two years.”

Samuel Issacharoff, a law professor at New York University, cautioned that it was too soon to declare a new era of harmony and light based on, say, the unanimous votes on recess appointments and abortion clinic buffer zones.

“No one should confuse these outcomes with a sudden outbreak of Kumbaya fever at the court,” he said. “The familiar lines of division were in evidence in all these cases. But, surprisingly, the court found a way to channel its core divisions into compromise holdings that allowed controversial cases to be settled rather than resolved.”

Correction: July 1, 2014

An earlier version of this article misidentified the member of the Supreme Court who assigned to Justice Stephen G. Breyer the majority opinion in the court’s recess appointments decision. It was Justice Anthony M. Kennedy, not Chief Justice John G. Roberts Jr.

A version of this news analysis appears in print on July 2, 2014, on page A1 of the New York edition with the headline: Compromise At the Court Veils Its Rifts.

    Compromise at the Supreme Court Veils Its Rifts, NYT, 1.7.2014,

    http://www.nytimes.com/2014/07/02/us/supreme-court-term-
    marked-by-unanimous-decisions.html

Limiting Rights:

Imposing Religion on Workers

JUNE 30, 2014

By THE EDITORIAL BOARD

The Opinion Pages | Editorial

The Supreme Court’s deeply dismaying decision on Monday in the Hobby Lobby case swept aside accepted principles of corporate law and religious liberty to grant owners of closely held, for-profit companies an unprecedented right to impose their religious views on employees.

It was the first time the court has allowed commercial business owners to deny employees a federal benefit to which they are entitled by law based on the owners’ religious beliefs, and it was a radical departure from the court’s history of resisting claims for religious exemptions from neutral laws of general applicability when the exemptions would hurt other people.

The full implications of the decision, which ruled in favor of employers who do not want to include contraceptive care in their company health plans, as required by the Affordable Care Act, will not be known for some time. But the immediate effect, as Justice Ruth Bader Ginsburg noted in a powerful dissent, was to deny many thousands of women contraceptive coverage vital to their well-being and reproductive freedom. It also invites, she said, other “for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faiths.”

The case involved challenges by two companies, Hobby Lobby, a chain of arts and crafts stores, and Conestoga Wood Specialties, a cabinet maker, to the perfectly reasonable requirement that employer health plans cover (without a co-payment) all birth control methods and services approved by the Food and Drug Administration. The main battleground was the Religious Freedom Restoration Act of 1993, which says government may not “substantially burden a person’s free exercise of religion” unless the burden is necessary to further a “compelling government interest” and achieves it by “the least restrictive means.”

As a threshold matter, Justice Samuel Alito Jr., read the act’s religious protections to apply to “the humans who own and control” closely held companies, an interpretation contradicted by the statute’s history, context, and wording. He then found that the contraceptive coverage rules put a “substantial burden” on the religious owners, who objected to some of the items on the F.D.A.’s list based on the incorrect claim they induce abortions.

It’s hard to see that burden. Nothing in the contraceptive coverage rule prevented the companies’ owners from worshiping as they choose or advocating against coverage and use of the contraceptives they don’t like.

Nothing compels women to use their insurance on contraceptives. A woman’s choice to use or not to use them is a personal one that does not implicate her employer. Such decisions “will be the woman’s autonomous choice, informed by the physician she consults,” as Justice Ginsburg noted. There also is no requirement that employers offer employee health plans. They could instead pay a tax likely to be less than the cost of providing insurance to help cover government subsidies available to those using an insurance exchange. That did not convince Justice Alito and his colleagues on the court’s right flank, who bought the plaintiffs’ claim that providing health coverage to employees was part of their religious mission.

The majority’s finding that the government’s contraception coverage rules were not the “least restrictive” way to carry out the broad and complex health reform was also unpersuasive.

Mr. Alito’s ruling and a concurrence by Justice Anthony Kennedy portray the decision as a narrow one without broader application, like denying vaccine coverage or job discrimination. But that is not reassuring coming from justices who missed the point that denying women access to full health benefits is discrimination.


A version of this editorial appears in print on July 1, 2014, on page A20 of the New York edition with the headline: The Justices Endorse Imposing Religion on Employees.

    Limiting Rights: Imposing Religion on Workers, NYT, 30.6.2014,
    http://www.nytimes.com/2014/07/01/opinion/the-supreme-court-
    imposing-religion-on-workers.html

Limiting Rights:

A Hit to Collective Bargaining

 

JUNE 30, 2014

The New York Times

The Opinion Pages | Editorial

By THE EDITORIAL BOARD

The Supreme Court’s ruling on Monday excusing certain workers paid by public funds from having to contribute any fees to the unions that represent them was not the deathblow to public-sector unions that many feared it would be. But there was no mistaking the ominous antipathy toward collective bargaining and workers’ rights behind Justice Samuel Alito Jr.’s majority opinion, which was joined by the four conservative members of the court.

In Harris v. Quinn, eight home-care aides, who are paid by their customers with Medicaid funds, challenged an Illinois law that required them to pay what are known as “fair share” fees to the Service Employees International Union, even though they had chosen not to join the union. The union — which is legally compelled to represent both members and nonmembers — used those fees (which are less than members’ dues) to negotiate on the aides’ behalf for higher wages and other benefits.

Under this common arrangement, everybody won: Illinois’ 20,000-plus home-care aides, who have been among the poorest-paid workers, saw their hourly wages rise from $7 in 2003 to $13 in 2014. They got state-financed health insurance, better training and more protective workplace-safety measures. Meanwhile, the state avoided the high costs of institutionalizing their customers.

But the aides who brought suit argued that the law violated their First Amendment rights by forcing them to support speech they don’t agree with — in this case, the union’s political activities, which they said could not easily be separated from collective bargaining.

The case should have been easy. The Supreme Court in 1977 upheld a Michigan law requiring fair-share fees from nonmembers of a teachers’ union. Collective-bargaining agreements, the court said, promote “labor stability” and eliminate the problem of “free riders,” who would otherwise get union benefits without paying for them.

The court on Monday did not overturn the older ruling, Abood v. Detroit Board of Education, but it refused to extend it to cover the home-care aides, who it said are not “full-fledged” public employees like police officers or firefighters. Because the aides effectively have two employers — their customers and the state — the court said the logic of the earlier case did not apply and the First Amendment prohibited the union from collecting the fees.

“Except perhaps in the rarest of circumstances,” Justice Alito wrote, “no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

Justice Elena Kagan, writing for four dissenters, flatly rejected that argument. The court, she said, has “long acknowledged that the government has wider constitutional latitude when it is acting as employer.”

The effect of Monday’s ruling will be felt by home-care and child-care workers nationwide — a growing, mostly female work force that is vulnerable, unstable and hard to organize. Justice Alito presumed that since a majority of Illinois’ caregivers voted to unionize, many are “willingly paying union dues.” But as Justice Kagan pointed out, everyone has an economic incentive to take free rides. She wrote, “Does the majority think that public employees are immune from basic principles of economics?”

That the Abood ruling survived is no comfort to public-sector unions, which today represent nearly eight million workers. As long as the court’s conservative bloc is intact, their security and viability remain at risk.


A version of this editorial appears in print on July 1, 2014, on page A20 of the New York edition with the headline: Collective Bargaining Takes a Hit.

    Limiting Rights: A Hit to Collective Bargaining, NYT, 30.6.2014,
    http://www.nytimes.com/2014/07/01/opinion/
    the-supreme-court-a-hit-to-collective-bargaining.html

Supreme Court Ruling

Allows Some Public Workers

to Opt Out of Union Fees

 

JUNE 30, 2014

The New York Times

By STEVEN GREENHOUSE

The Supreme Court ruled narrowly on Monday that some government employees did not have to pay any fees to labor unions representing them, but the court decision declined to strike down a decades-old precedent that required many public-sector workers to pay union fees.

Writing the majority 5-4 opinion, Justice Samuel A. Alito Jr. concluded that there was a category of government employee — a partial public employee — who can opt out of joining a union and not be required to contribute dues to that labor group.

Justice Alito wrote that home-care aides who are typically employed by an ill or disabled person with Medicaid’s paying their wages would be classified as partial public employees, which would not be the same as public-school teachers or police officers who work directly for the government.

Because states often set wages for partial public employees like home-care aides and because unions often do not conduct collective bargaining for them, these aides cannot be required to pay union fees, Justice Alito wrote. He wrote that requiring these home-care aides to pay would be a violation of their First Amendment rights.

The case, Harris v. Quinn, was brought by eight Illinois workers who provided home health care to Medicaid recipients. They asked the court to overrule a 1977 decision that declared that government employees can be required to pay fees to unions for representing them and administering their contracts even if they disagree with the union’s positions. The majority declined to overrule that foundational decision, Abood v. Detroit Board of Education — a move that could have significantly cut into the membership and treasuries of public-sector unions.

Illinois and numerous other states require government workers, whether or not they opt to join a union, to pay “fair share” fees to finance a union’s collective bargaining efforts to prevent freeloading and to ensure “labor peace.” But the court in Abood held that workers could not be required to help pay for activities that were purely political, like a union’s lobbying the legislature or campaigning for particular candidates.

The question in Monday’s decision, Harris v. Quinn, No. 11-681, was just where to draw that line.

The National Right to Work Legal Defense Foundation represented the Illinois workers and had argued that Illinois was violating the First Amendment by requiring that government workers pay compulsory fees to unions even when they disagreed with the unions’ positions. The foundation argued that most of what public-sector unions did was inherently political, partly because they rely on the government to pay their members’ wages, pensions and other benefits.

But the Service Employees International Union and the Obama administration urged the court to uphold the legality of “fair-share fees.”

Ever since the Supreme Court agreed to hear this case, labor leaders have voiced fears that a decision banning such dues could badly weaken public-sector unions and their treasuries by causing a million or more government workers nationwide to opt out of paying any representation fees to the unions at their workplaces.

During oral arguments in January, Justice Elena Kagan, said the position taken by the National Right to Work Legal Defense Foundation “would radically restructure the way workplaces across this country are run.”

But Justice Anthony Kennedy asked whether it would be constitutional for a union to “take money from an employee who objects to the union’s position on fundamental political grounds.”

In a decision two years ago, Justice Alito opened the door to the ruling on Monday. In that case, Knox v. Service Employees International Union, the union required workers to pay a special midyear assessment to finance campaign activities on two California ballot measures — although the union gave workers the right to opt out.

Writing for the majority, Justice Alito ruled that the ability to opt out was not enough. “This aggressive use of power by the S.E.I.U. to collect fees from nonmembers is indefensible,” he wrote at the time. “When a public-sector union imposes a special assessment or dues increase,” he added, the union “may not exact any funds from nonmembers without their affirmative consent.” He wrote that the union must send a notice “allowing nonmembers to opt in to the special fee rather than requiring them to opt out.”

In that case, Justice Alito voiced discomfort with the court’s previous objections to so-called free-riders — preventing nonmembers from benefiting from the union’s collective-bargaining activities without paying for them. He wrote that concerns about free-riding “are generally insufficient to overcome First Amendment objections” and are “something of an anomaly.”

Correction: June 30, 2014

An earlier version of this article misstated the middle initial of a Supreme Court justice. He is Samuel A. Alito Jr., not Samuel J.

    Supreme Court Ruling Allows Some Public Workers to Opt Out of Union Fees,
    NYT, 30.6.2014,
    http://www.nytimes.com/2014/07/01/business/
    supreme-court-ruling-on-public-workers-and-union-fees.html

Supreme Court Rejects

Contraceptives Mandate

for Some Corporations

 

JUNE 30, 2014

The New York Times

By ADAM LIPTAK

WASHINGTON — The Supreme Court ruled on Monday that requiring family-owned corporations to pay for insurance coverage for contraception under the Affordable Care Act violated a federal law protecting religious freedom.

The 5-to-4 decision, which applied to two companies owned by Christian families, opened the door to challenges from other corporations to many laws that may be said to violate their religious liberty.

Justice Samuel A. Alito Jr., writing for the court’s five more conservative justices, said a federal religious-freedom law applied to for-profit corporations controlled by religious families. He added that the requirement that the companies provide contraception coverage imposed a substantial burden on the companies’ religious liberty. He said the government could provide the coverage in other ways.

Justice Ruth Bader Ginsburg, writing for the court’s four-member liberal wing, said the contraception coverage requirement was vital to women’s health and reproductive freedom. Justices Stephen G. Breyer and Elena Kagan joined almost all of the dissent, but they said there was no need to take a position on whether corporations may bring claims under the religious liberty law.

On that point, Justice Ginsburg, joined by Justice Sonia Sotomayor, said the court’s decision “is bound to have untoward effects” in other settings.

“The court’s expansive notion of corporate personhood,” Justice Ginsburg wrote, “invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faiths.”

The contraception coverage requirement was challenged by two corporations whose owners say they try to run their businesses on religious principles: Hobby Lobby, a chain of crafts stores, and Conestoga Wood Specialties, which makes wood cabinets

The health care law and related regulations require many employers to provide female workers with comprehensive insurance coverage for a variety of methods of contraception. The companies objected to some of the methods, saying they are tantamount to abortion because they can prevent embryos from implanting in the womb. Providing insurance coverage for those forms of contraception would, the companies said, make them complicit in the practice.

The companies said they had no objection to other forms of contraception, including condoms, diaphragms, sponges, several kinds of birth control pills and sterilization surgery.

The Obama administration said it did not question the sincerity of the companies’ beliefs, and it has offered exemptions to other groups on such grounds.

A federal judge has estimated that a third of Americans are not subject to the requirement that their employers provide coverage for contraceptives. Small employers need not offer health coverage at all; religious employers like churches are exempt; religiously affiliated groups may claim an exemption; and some insurance plans that had not previously offered the coverage are grandfathered in.

But the administration said that for-profit corporations like Hobby Lobby and Conestoga Wood must comply with the law or face fines.

The companies challenged the coverage requirement under the Religious Freedom Restoration Act of 1993. The law was a response to a 1990 Supreme Court decision that declined to recognize religious exceptions under the First Amendment’s free exercise clause to generally applicable laws. Congress effectively reversed that decision.

“What this law basically says,” President Bill Clinton said before signing the bill, “is that the government should be held to a very high level of proof before it interferes with someone’s free exercise of religion.”

The threshold question in the new case was whether the companies were permitted to raise a claim under the law.

The companies argued that they were, and they said the coverage requirement imposed a “substantial burden” on religious practices by subjecting Hobby Lobby, for instance, to fines of $1.3 million a day if it chose not to offer comprehensive coverage, and to different fines of $26 million a year if it stopped offering insurance entirely.

Some scholars responded that the company would be better off financially if it dropped coverage, and so does not face a substantial burden.

The administration argued that requiring insurance plans to include comprehensive coverage for contraception promotes public health and ensures that “women have equal access to health care services.” The government’s briefs added that doctors, rather than employers, should decide which form of contraception is best.

A supporting brief from the Guttmacher Institute, a research and policy group, said that many women cannot afford the most effective means of birth control and that the law will reduce unintended pregnancies and abortions.

    Supreme Court Rejects Contraceptives Mandate for Some Corporations,
    NYT, 30.6.2014,
    http://www.nytimes.com/2014/07/01/us/
    supreme-court-ruling-in-contraceptive-case-is-awaited.html

The Supreme Court

Was Right to Allow

Anti-Abortion Protests

 

JUNE 26, 2014

By LAURENCE H. TRIBE

The New York Times

The Opinion Pages | Op-Ed Contributor

CAMBRIDGE, Mass. — Even as a committed supporter of a woman’s — increasingly imperiled — right to choose, I must acknowledge that the Supreme Court got it right on Thursday.

In McCullen v. Coakley, the Court unanimously struck down a Massachusetts law setting a 35-foot buffer zone around abortion clinics. While the buffer zone was enacted to ensure the safety of women seeking abortions, it also restricted the peaceful activities of the plaintiff, Eleanor McCullen, and other opponents of abortion, who sought to stand on the sidewalk and urge those women not to make what they see as a tremendous mistake.

That I don’t share Ms. McCullen’s views is beside the point. The great virtue of our First Amendment is that it protects speech we hate just as vigorously as it protects speech we support. On Thursday, all nine justices united to reaffirm our nation’s commitment to allowing diverse views in our public spaces — although their unanimous result belied their divided reasoning.

Cases like McCullen force us to balance competing constitutional values: free speech against the safety and autonomy of women. Here the balance tips unquestionably toward speech. A woman’s right to choose whether or not to terminate her pregnancy under Roe v. Wade guarantees her protection from the state. This protection does not include a right to be shielded by the state from fellow citizens hoping to peacefully convince her that she’s making the wrong choice. In his opinion for the court, Chief Justice John G. Roberts Jr. affirmed the value of these personal conversations: “If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message.”

In that opinion, the court ruled, 5 to 4, that the Massachusetts statute was neutral with respect to the content of the speech that it sought to regulate — but was still unconstitutional because it restricted more speech than necessary to achieve its aim.

The chief justice and those joining him were right that the restriction was needlessly broad. Although Massachusetts officials claimed they had unsuccessfully attempted to implement less restrictive alternatives, Chief Justice Roberts emphatically declined to accept that contention on faith, echoing his recent opinion in the cellphone privacy cases, in which he found that neither the state nor the federal government had offered “evidence to suggest that their concerns” about law enforcement’s need to conduct cellphone searches without a judicial warrant “are based on actual experience.” That demand for evidence was a marked improvement over the court’s willingness in other recent free-speech cases to defer to naked government assertions about national security needs.

In his quest to bring all his colleagues on board, Chief Justice Roberts wrote an opinion that implausibly described the Massachusetts statute as neutral as between anti-abortion speech and abortion rights speech — a neutrality that four conservative justices rightly dismissed as illusory, revealing a court sharply divided beneath its veneer of unanimity.

Justice Antonin Scalia, the most forceful of the conservatives, correctly criticized this sleight-of-hand in his concurrence with Chief Justice Roberts, arguing convincingly, as did Justice Samuel A. Alito Jr., that the law at issue was anything but neutral toward the content of the speech at issue but represented a form of censorship. Justice Scalia and the justices joining him, Anthony M. Kennedy and Clarence Thomas, worried that a spurious unanimity by the court would encourage other jurisdictions to attempt, and get away with, similar sorts of discrimination favoring some kinds of speech over others.

This is not to say that other rights can never outweigh free speech. In 1992, the court upheld a buffer zone limiting political speech around a polling place. Thursday’s opinion sensibly distinguished between voting booths and abortion clinics, focusing on the difficulty of detecting low-visibility voter intimidation as compared with the “anything but subtle” harassment of women seeking abortions.

It focused as well on the deliberate exclusion of police officers near polling places in order to avoid the reality or appearance of official pressure on voters, an issue absent with abortion clinics, where the police are free to protect women from being pressured by others. The state has many alternative measures available to protect patient safety and autonomy, and the court’s decision rightly insists that the state must exhaust those alternatives before resorting to a blanket restriction of free speech.

Thursday’s opinion in no way restricts the right to choose whether or not to terminate a pregnancy guaranteed by Roe v. Wade, in 1973, and reaffirmed, in 1992, in Planned Parenthood v. Casey. Nor does recognizing a duty to protect freedom of speech in this setting ask us to deny the genuine anguish suffered even by women who are confronted by quiet protesters rather than noisy agitators on their way to use reproductive health services. But neither empathy for their anguish, nor the need to protect the safety of women seeking such services, nor the clear need to guard against the rising tide of state laws designed to restrict access to abortions, can justify far-reaching measures that restrict peaceful conversation in public spaces.

 

Laurence H. Tribe, a professor of constitutional law

at Harvard, is the co-author, with Joshua Matz,

of “Uncertain Justice: The Roberts Court

and the Constitution.”

    The Supreme Court Was Right to Allow Anti-Abortion Protests,
    NYT, 26.6.2014,
    http://www.nytimes.com/2014/06/27/opinion/
    the-supreme-court-was-right-to-allow-anti-abortion-protests.html

A Unanimous Supreme Court:

A Blow to Presidential Appointments

 

JUNE 26, 2014

The New York Times

The Opinion Pages | Editorial

By THE EDITORIAL BOARD

When one branch of government routinely abuses its constitutional power in order to prevent another from functioning, the Supreme Court is expected to take notice and stop the abuse. Unfortunately the court failed to do so on Thursday in an important balance-of-power case, raising the prospect that President Obama and his successors could have trouble making necessary appointments to executive posts as the nation’s politics become more sharply polarized.

The court invalidated a series of appointments Mr. Obama made to the National Labor Relations Board in 2012, at a time when Republicans were blocking all nominations to the board, regardless of merit, to prevent pro-union decisions. Mr. Obama had erred, the court said, by declaring the Senate in recess at a time when it was holding short pro forma sessions every three days when nearly all members were on vacation and no real business was being transacted. Though Article 2 of the Constitution gives the president power to make recess appointments, the unanimous opinion of the court was that these pro forma sessions did not constitute a recess because “the Senate is in session when it says it is,” as long as it is capable of conducting business.

This view is willfully blind to the real purpose of the pro forma sessions, which were held solely to thwart the president from making recess appointments. No real legislating can take place when virtually all members are out of town — as the Senate’s official website says, “no business is conducted at these sessions.” The fact that during one session the presiding officer rubber-stamped a payroll tax deal that had been reached the week before — cited by the court as proof of real business — doesn’t change what everyone in Washington knew was really going on.

The opinion, written by Justice Stephen Breyer, did at least preserve the theoretical right of presidents to make recess appointments at any time when Congress is closed for more than 10 days. In so doing, it reversed the bizarre prescription of the United States Court of Appeals for the District of Columbia Circuit that such appointments can only be made between sessions of Congress, and then only when vacancies occur during that limited recess. An expansive interpretation of recesses has prevailed since the beginning of the republic, Justice Breyer wrote, showing a regard for history not shared by Justice Antonin Scalia and three of his conservative colleagues, who wrote a concurring opinion that supported the circuit court’s ruling.

But Justice Breyer’s realism ended there. The one-minute sessions constituted a clear political abuse of power and are likely to continue. There won’t be any recesses that fit the court’s new 10-day formula as long as one chamber is controlled by a party that doesn’t occupy the White House. Democrats started this practice to block President George W. Bush’s recess appointments, and Republicans did the same thing under Mr. Obama, using the House’s power to prevent the Senate from adjourning.

The effect of the ruling is reduced somewhat because the Senate, in overhauling its filibuster rules last year, ended the ability of the minority party to block appointments with only two-fifths of the chamber. For the moment, Republicans are no longer able to prevent the functioning of an agency they don’t like, such as the labor board, by refusing to make any appointments. But all that could change if Republicans take over the Senate next year and begin blocking all nominees with a simple majority vote, then refusing to allow recess appointments.

The nature of lawmaking has changed. Many elected officials are now willing to allow government defaults, starve agencies and encourage government shutdowns. The court should have recognized that future presidents may need a legal backstop to make executive appointments just to keep the government running.


A version of this editorial appears in print on June 27, 2014,
on page A28 of the New York edition with the headline: A Unanimous Supreme Court: A Blow to Presidential Appointments.

    A Unanimous Supreme Court: A Blow to Presidential Appointments,
    NYT, 26.6.2014,
    http://www.nytimes.com/2014/06/27/opinion/a-unanimous-supreme-court-
    a-blow-to-presidential-appointments.html

A Unanimous Supreme Court:

Abortion Rights Lose a Buffer

JUNE 26, 2014

The New York Times

 The Opinion Pages | Editorial

By THE EDITORIAL BOARD

In the world as Supreme Court Justice Antonin Scalia imagines it, anti-abortion advocates resemble Eleanor McCullen, a self-described “mother and grandmother” who stands outside a reproductive-health clinic in Boston and attempts to gently “counsel” approaching women out of getting an abortion.

He also sees lawmakers and judges conspiring to silence the voices of those like Ms. McCullen by establishing buffer zones on public sidewalks around those clinics.

Out in the real world, of course, all anti-abortion advocates are not Ms. McCullen, and buffer-zone laws like the one in Massachusetts — which set a 35-foot area around clinic entrances — are a considered response to a decades-long threat to public safety, largely in the form of harassment, physical intimidation and worse by people opposed to abortion.

Television network producers raced past demonstrators outside the Supreme Court with copies of the decision on Thursday.

Yet on Thursday the Supreme Court, in McCullen v. Coakley, struck down that law for violating the First Amendment. Massachusetts’s buffer zone, it held, burdened “substantially more speech than necessary” to protect public safety. If individual protesters try to block a clinic entrance or harass a prospective client, the court said, Massachusetts already has laws on the books to deal with them.

This ignores what actually happens on the ground. As the factual record of the case made clear, Massachusetts has, like most states, endured a long and sometimes violent history of protest at reproductive-health clinics, including the 1994 murders of two Planned Parenthood workers by an abortion opponent.

As both opponents and defenders of abortion rights have converged on the clinics over the years, initially peaceful protests have escalated into shoving matches, with women caught in the middle.

An earlier law setting a “floating” buffer zone of six feet had proved impossible to enforce, police officers testified. “Everybody is in everybody’s face, no matter what,” one captain said. “It’s almost like a goalie’s crease out there.” The 35-foot buffer, the police said, was by far the most effective way of keeping the peace, maintaining public safety and still respecting freedom of speech.

The justices have firsthand experience with striking that delicate balance. The Supreme Court building’s own buffer zone, which includes its vast plaza and is far larger than 35 feet, prohibits “demonstrations, picketing, speechmaking,” or any other conduct that is “reasonably likely to draw a crowd or onlookers.” Yet all manner of viewpoints are expressed without difficulty every day on the sidewalk in front of the court.

The McCullen ruling, written by Chief Justice John Roberts Jr., was, surprisingly, unanimous, but Justice Scalia correctly called it a “specious unanimity,” and filed a fuming concurrence in which he agreed only with the final outcome.

He was upset by the majority’s assertion that the law did not discriminate against the content of any speech or against any speaker’s viewpoint. But what appeared to infuriate Justice Scalia most was the court’s failure to understand that the “obvious purpose” of buffer-zone laws is to “protect” women from having to hear any speech against abortion. He would have also overturned the court’s ruling in 2000 that upheld a Colorado law creating a smaller, floating buffer zone around health clinics.

Chief Justice Roberts’s opinion does not discuss that ruling. It narrowly focuses on the law’s challengers, whom it characterized as offering “counseling and information,” and engaging in “personal, caring, consensual conversations.” But paper leaflets and polite words are not the real threats women face in trying to exercise their constitutional right to an abortion.


A version of this editorial appears in print on June 27, 2014, on page A28 of the New York edition with the headline: Abortion rights lose a buffer.

    A Unanimous Supreme Court: Abortion Rights Lose a Buffer, NYT, 26.6.2014,

    http://www.nytimes.com/2014/06/27/opinion/
     a-unanimous-supreme-court-abortion-rights-lose-a-buffer.html

The Supreme Court Justices

Have Cellphones, Too
 

The Supreme Court Rules in Favor of Cellphone Privacy

 

JUNE 25, 2014

The New York Times

The Opinion Pages | Contributing Op-Ed Writer

Fourteen years ago, the Rehnquist court interrupted a string of law enforcement victories to rule that when looking for illegal drugs, the police couldn’t simply walk down the aisle of an intercity bus and squeeze the bags and soft-sided luggage on the overhead rack.

The common tactic amounted to an unconstitutional search, Chief Justice William H. Rehnquist wrote for the 7-to-2 majority in Bond v. United States. While passengers certainly expect that their luggage “may be handled,” the chief justice said, that expectation didn’t extend to supposing that anyone “will, as a matter of course, feel the bag in an exploratory manner.”

I remember puzzling over that decision. In one opinion after another, most written by Chief Justice Rehnquist, the Supreme Court had been allowing the police to write their own ticket when it came to detecting drug trafficking. Why draw the line at a duffel bag on a Greyhound bus?

Eventually, it occurred to me: The justices were passengers, too. Not on buses, for sure, but on Amtrak or the shuttle, and the notion that anyone with a badge could start randomly feeling up their carry-ons was deeply distasteful.

In another search case just three months earlier, all nine justices agreed that flight at the mere sight of a police officer could raise enough suspicion to justify the police in conducting a warrantless stop-and-frisk.

That case, Wardlow v. Illinois, was another Rehnquist opinion. Would it occur to any Supreme Court justice to take off running down a Chicago street in broad daylight, as Sam Wardlow did when he saw four squad cars approaching the spot where he stood? Not likely.

I’m oversimplifying, of course: The Fourth Amendment’s prohibition of unreasonable search and seizure has given rise to a complex body of law, dense with precedents that can be maneuvered in just about any direction. So perhaps the most remarkable aspect of the Supreme Court’s decision on Wednesday barring warrantless searches of cellphones was how simple and obvious Chief Justice John G. Roberts Jr., who wrote the 9-0 opinion, made it all sound.

The court’s “search incident to arrest” doctrine has a robust history, dating from the late 1960s and early 1970s. In one leading case, the police arrested a man for driving with a revoked license, patted him down, fished a crumpled cigarette pack out of his pocket, and found 14 heroin capsules inside. The court deemed the search valid. In the case the court decided Wednesday, Riley v. California, the California Court of Appeal likewise deemed valid the search of a smartphone carried by a man stopped for driving with expired license tags. On the phone, the police found text, photographs and video linking its owner with gang activity, including a shooting.

Urging the Supreme Court to uphold the California decision, Solicitor General Donald B. Verrilli Jr. told the justices in the federal government’s brief that “cellphones do not raise qualitatively different privacy concerns than items that the police have always had authority to search incident to arrest, such as letters, diaries, briefcases, and purses.”

Oh yes, they do, Chief Justice Roberts said: “Cellphones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.” He went on at length to describe the differences, noting that a cellphone can reveal more private information than the search of an entire house. The phone contains “the sum of an individual’s private life” he said; searching it without a warrant is constitutionally unreasonable. The chief justice’s response to the government’s warning that a warrant requirement would impede law enforcement was basically a shrug: “Privacy comes at a cost.”

The Roberts court has too often been on the wrong side of history, most pointedly in its retrograde refusal to protect the right to vote; Wednesday was the first anniversary of Shelby County v. Holder, the shameful 5-to-4 decision that undermined the Voting Rights Act. When it comes to technology, however, the court seems free of ideological baggage and is trying hard, collectively, to get it right.

The justices ruled two years ago in United States v. Jones that placing a GPS device on a suspected drug dealer’s car in order to monitor his movements for a month was a search. The vote was 9-0, although the rationale was divided. During the argument in that case, the justices seemed taken aback by the government’s concession — inherent in its legal theory — that they themselves could be subjected to such an intrusion on their privacy.

“You could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month, no problem under the Constitution?” Chief Justice Roberts asked his one-time colleague in the solicitor general’s office, Michael R. Dreeben, who had no choice but to say yes.

I had planned to conclude my discussion of the court and the search cases with a mention of “empathy,” the ability to put oneself in someone else’s shoes, so often missing from the Supreme Court’s criminal law decisions but perhaps on display here. But on reflection, it’s not really empathy. The justices are walking in their own shoes. The ringing cellphone could be theirs — or ours.

A version of this op-ed appears in print on June 26, 2014, on page A27 of the New York edition with the headline: The Justices Have Cellphones, Too.

    The Supreme Court Justices Have Cellphones, Too,
    NYT, 25.16.2014,
    http://www.nytimes.com/2014/06/26/opinion/
    linda-greenhouse-the-supreme-court-justices-have-cellphones-too.html

The Supreme Court

Saves Cellphone Privacy

JUNE 25, 2014

The New York Times

The Opinion Pages | Today's Editorials

By THE EDITORIAL BOARD

The nine justices of the Supreme Court — whose average age is 68 — often admit to being unfamiliar with modern technology, if not befuddled by it. While listening to oral arguments in April, Chief Justice John Roberts Jr. asked, with apparent sincerity, why anyone other than a criminal would carry two cellphones.

Yet in a gratifyingly sweeping ruling on Wednesday, the court embraced a central reality of the digital age and protected such phones from being searched without a warrant during an arrest, except in rare circumstances.

“Modern cellphones are not just another technological convenience,” Chief Justice Roberts wrote for a unanimous court. “With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ ”

The issue arose in two separate cases involving police officers who searched the phone of an arrested suspect without a warrant. In one case, United States v. Wurie, a check of the phone’s call log led police officers to an apartment where they found evidence of drug crimes. In the other case, Riley v. California, which began as a traffic stop, photos and videos on a seized phone revealed gang activity and resulted in a dramatically increased sentence for the defendant.

In both cases, the government argued that the searches were permissible under a long-established exception to the Fourth Amendment, which generally requires the police to get a warrant before searching “persons, houses, papers, and effects.” After a lawful arrest, however, the police may search a person’s body and immediate surroundings without a warrant, both for their own protection and to prevent the destruction of evidence.

Cellphones have upset that balance, as the court rightly recognized. First, nearly everyone has one and uses it daily. They have become so prevalent so fast that, as Chief Justice Roberts wrote, “the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” More important, they contain “vast quantities of personal information,” from financial and medical records to archives over many years of private correspondence and records of places the owner has been. They are “minicomputers,” the court said, that contain more information than entire houses once did.

In short, the expectation of privacy in a phone’s contents outweighs the immediate needs of law enforcement.

Particularly since police officers may still conduct a warrantless search of a phone in a true emergency, the court was equally unconvinced by the government’s other arguments — that a phone’s incriminating data could be remotely wiped, for instance, or that it could alert an officer to approaching accomplices who might threaten his safety. These scenarios were hypothetical, the court said, or they could be addressed by existing technology.

The court acknowledged that cellphones are widely used by criminals, and that its ruling would have an impact on law enforcement’s ability to fight crime. But it said the warrant requirement is “not merely an inconvenience to be somehow weighed against the claims of police efficiency.”

“Privacy comes at a cost,” the court wrote.

It’s worth noting that this cost is still very low: Judges nearly always grant warrant requests, and as the chief justice pointed out, it is easier than ever to get one quickly today, thanks to the same technologies that gave rise to the cellphone.

Still, Wednesday’s ruling reaffirmed the essence of the Fourth Amendment’s ban on unreasonable searches and seizures — “one of the driving forces behind the Revolution itself,” as the court said — even though the Bill of Rights was written by men who could not have imagined an iPhone in their maddest dreams.
 

A version of this editorial appears in print on June 26, 2014, on page A26 of the New York edition with the headline: The Court Saves Cellphone Privacy.

    The Supreme Court Saves Cellphone Privacy, NYT, 25.6.2014,

    http://www.nytimes.com/2014/06/26/opinion/
    the-supreme-court-saves-cellphone-privacy.html

Justices Uphold

Emission Limits on Big Industry

 

JUNE 23, 2014
The New York Times
By ADAM LIPTAK

WASHINGTON — In a big win for environmentalists, the Supreme Court on Monday effectively endorsed the Obama administration’s efforts to regulate greenhouse gas emissions from sources like power plants, even as it criticized what it called the administration’s overreaching.

The decision is one in a recent string of rulings upholding the Environmental Protection Agency’s authority to issue Clean Air Act regulations to curb climate change, and the agency celebrated the decision.

But the combative tone of Monday’s ruling, along with its rejection of one of the agency’s principal rationales for the regulations under review, suggests that the road ahead may be rocky for other initiatives meant to reduce carbon emissions.

The decision, said Richard J. Lazarus, a law professor at Harvard, “gave the agency a tongue-lashing and suggested the potential for some significant limitations on how the agency chooses to exercise its authority in the future.”

In a part of the ruling decided by a 7-to-2 vote, the court said the E.P.A. could regulate sources of greenhouse gases as long as they would already need permits for emitting conventional pollutants. That approach allowed the agency to regulate large, industrial polluters, such as power plants and oil refineries, and exempted millions of the nation’s small-scale carbon emitters, such as schools, apartment buildings and individual businesses like Dunkin’ Donuts or Chipotle.

In carving out the small emitters, the court effectively agreed with the agency, which saw such broad regulations as an unwieldy nightmare.

“E.P.A. is getting almost everything it wanted in this case,” Justice Antonin Scalia said in summarizing the decision. “It sought to regulate sources it said were responsible for 86 percent of all the greenhouse gases emitted from stationary sources nationwide. Under our holdings, E.P.A. will be able to regulate sources responsible for 83 percent of those emissions.”

(“Stationary sources” are buildings like factories and power plants; the agency also regulates tailpipe emissions from cars and trucks.)

Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined that part of the decision.

The agency expressed satisfaction with the ruling. “The Supreme Court’s decision is a win for our efforts to reduce carbon pollution because it allows E.P.A., states and other permitting authorities to continue to require carbon pollution limits in permits for the largest pollution sources,” the agency said in a statement.

Another part of Monday’s decision rejected the agency’s primary rationale for the regulations. The agency had contended that it would interpret the Clean Air Act to require the regulation of far fewer stationary sources of pollution than the law seemed to require.

“An agency has no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms,” Justice Scalia wrote. Chief Justice Roberts and Justices Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined that part of the decision, which was decided by a 5-to-4 vote.
Continue reading the main story

The solution was not to require broader regulation, Justice Scalia said. Rather, he said, the practical problems identified by the agency were reason to think it was misreading the statute. “It would be patently unreasonable — not to say outrageous — for E.P.A. to insist on seizing expansive power that it admits the statute is not designed to grant,” Justice Scalia wrote

The National Federation of Independent Business, a plaintiff in the case, welcomed what it said was the Supreme Court’s refusal to allow the agency to rewrite the statute.

“If this rule had been allowed to stand, small-business owners such as ranchers, farmers, manufacturers, restaurant owners and others would have seen more paperwork, more oversight and fines,” the group said in a statement.

Supporters of President Obama’s climate change agenda said the ruling did not affect the administration’s recently proposed regulations to curb greenhouse gas emissions from coal-fired power plants.

“The E.P.A. has just proposed standards to reduce carbon pollution from power plants, and that critical work will move ahead to protect Americans from the worst impacts of climate change,” said David Doniger, director of the clean air and climate change program with the Natural Resources Defense Council, an advocacy group.

But legal experts said that Monday’s decision also included a warning that the court’s view of the E.P.A.’s regulatory authority has its limits.

“We are not willing to stand on the dock and wave goodbye as E.P.A. embarks on this multiyear voyage of discovery,” Justice Scalia wrote.

That statement was “a warning shot,” said Jody Freeman, a law professor at Harvard. “It suggests that the courts will look skeptically at assertions of authority that are very new and very far-reaching.”

Still, the agency has been on a winning streak. In April, the Supreme Court upheld its authority to regulate smog from coal plants that drifts across state lines, a ruling that Professor Lazarus called “one of E.P.A.’s biggest wins ever in the court.” After Monday’s ruling, he said, “E.P.A. walked away standing, but not quite as tall as before.”

The regulations challenged in Monday’s decision built on the Supreme Court’s 5-to-4 decision in 2007 in Massachusetts v. Environmental Protection Agency, which required the agency to regulate emissions of greenhouse gases from new motor vehicles if it found that they endangered public health or welfare.

The agency made such a finding, saying that “elevated concentrations of greenhouse gases in the atmosphere” pose a danger to “current and future generations,” and it set limits on emissions from new vehicles.

The agency said its regulation of tailpipe emissions also required regulation of emissions from stationary sources under two permitting programs. While acknowledging that the relevant provisions of the Clean Air Act fit such emissions imperfectly, the agency said the law nonetheless compelled it to require permits.

The Clean Air Act says those programs cover all sources that can annually emit 100 tons or 250 tons of the relevant pollutant, a threshold that works tolerably well for conventional air pollutants like lead and carbon monoxide. But that threshold, applied to greenhouse gases, which are emitted in far greater amounts, would require the regulation of millions of sources of pollution.

Applying the law as written would increase the number of covered sources under one program to more than 80,000, from just hundreds, reaching commercial and residential sources and subjecting them to expenses averaging almost $60,000, according to a decision under review from the United States Court of Appeals for the District of Columbia Circuit.

A second program would reach six million sources, subjecting them to expenses of more than $20,000 each. The cost of administering the programs would rise to $21 billion from $62 million, and the new covered sources, Justice Scalia wrote, would face costs of $147 billion.

The agency said Congress could not have intended such an “absurd result.” Its solution was to raise the statutory emissions threshold to 75,000 to 100,000 tons per year, thus reaching far fewer facilities. This was, it said, a permissible exercise of discretion and one subject to tightening over time.

Justice Scalia, writing for five justices, rejected that approach. “It is hard to imagine a statutory term less ambiguous than the precise numerical thresholds at which the act requires,” he wrote.

Endorsing the agency’s approach, he added, “would deal a severe blow to the Constitution’s separation of powers.”

Justice Breyer, writing for the court’s four-member liberal wing in a partial dissent on this point, said the agency’s approach was a sensible attempt to apply the purpose of the Clean Air Act.

The dispute had little immediate practical effect, as the other part of Justice Scalia’s opinion, now speaking for seven justices, allowed the agency to get to largely the same place by a different route by sustaining regulation of carbon emissions from sources already subject to regulation for conventional pollutants.

“We are not talking about extending E.P.A. jurisdiction over millions of previously unregulated entities,” Justice Scalia wrote, “but about moderately increasing the demands E.P.A. (or a state permitting authority) can make of entities already subject to its regulation.” But he acknowledged that the two approaches are almost equally effective.

Justice Alito, joined by Justice Thomas, dissented from that part of the decision, Utility Air Regulatory Group v. Environmental Protection Agency, No. 12-1146.

A version of this article appears in print on June 24, 2014,

on page A1 of the New York edition with the headline:

Justices Uphold Emission Limits On Big Industry.

    Justices Uphold Emission Limits on Big Industry, NYT, 23.5.2014,
    http://www.nytimes.com/2014/06/24/us/
    justices-with-limits-let-epa-curb-power-plant-gases.html

Court Rules

Against Florida I.Q. Rule

in Death Cases

MAY 27, 2014
The New York Times
By ADAM LIPTAK

WASHINGTON — The Supreme Court on Tuesday ruled that Florida had adopted too rigid a cutoff in deciding who is eligible to be spared the death penalty on account of intellectual disabilities.

“Florida seeks to execute a man because he scored a 71 instead of 70 on an I.Q. test,” Justice Anthony M. Kennedy wrote for the majority in a 5-to-4 decision. He was joined by court’s four more liberal members.

When the court barred the execution of people with mental disabilities in 2002 in Atkins v. Virginia, it largely let the states determine who qualified. Tuesday’s decision, Justice Samuel A. Alito Jr. wrote for the four dissenters, represented a “sea change” in the court’s approach.

Justice Kennedy responded that closer supervision of the states was warranted given the nature of the punishment.

“The death penalty is the gravest sentence our society may impose,” he wrote. “Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution. Florida’s law contravenes our nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world.”

The case, Hall v. Florida, No. 12-10882, arose from the 1978 murder of Karol Hurst, who was 21 and seven months pregnant when Freddie L. Hall and an accomplice forced her into her car in a supermarket parking lot. She was found in a wooded area, where she had been beaten, sexually assaulted and shot.

There was significant evidence in school and court records that Mr. Hall was “mentally retarded,” the term that was used at the time. Before the Supreme Court’s decision in the Atkins case, a trial judge found that there was “substantial evidence” that Mr. Hall “has been mentally retarded his entire life.”

After the Atkins decision, Mr. Hall challenged his death sentence, relying in part on the earlier state court determinations.

The Atkins decision gave states only general guidance. It said a finding of mental retardation required proof of three things: “subaverage intellectual functioning,” meaning low I.Q. scores; a lack of fundamental social and practical skills; and the presence of both conditions before age 18. The court said I.Q. scores under “approximately 70” typically indicate retardation

A Florida law enacted not long before the Atkins decision created what Mr. Hall’s lawyers called an “inflexible bright-line cutoff” requiring proof of an I.Q. of 70 or below. In 2012, the Florida Supreme Court ruled that Mr. Hall was eligible to be executed because his I.Q. had been measured at various times as 71, 73 and 80.

That approach, Justice Kennedy wrote, had at least two flaws. One was that it failed to take account of standard errors of measurement. “An individual’s score is best understood as a range of scores on either side of the recorded scores,” he wrote.

The second problem, he said, was that a rigid cutoff excludes consideration of other evidence. “Intellectual disability is a condition, not a number,” he wrote.

Justice Alito protested that this changed the rules announced in Atkins, which required both low scores and more practical proof. He was also harshly critical of the court’s reliance on the views of medical experts, saying the majority had overruled part of the Atkins decision “based largely on the positions adopted by private professional organizations.”

The Supreme Court assesses whether given practices are barred by the Eighth Amendment’s prohibition of cruel and unusual punishment by considering, in the words of a 1958 decision, the “evolving standards of decency that mark the progress of a maturing society.” In doing so, Justice Alito said, it had always “meant the standards of American society as a whole.”

“Now, however,” he wrote, “the court strikes down a state law based on the evolving standards of professional societies, most notably the American Psychiatric Association.”

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas joined the dissent.

The majority and dissenting opinions clashed over statistics and over how many states had laws similar to Florida’s. By Justice Kennedy’s count, Kentucky and Virginia have adopted a fixed cutoff of 70 by statute, and Alabama by court decision. Five other states, he said, have laws open to the same interpretation.

Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined the majority opinion. In earlier decisions limiting the use of the death penalty and other harsh punishments under the Eighth Amendment, Justice Kennedy has often joined the court’s liberal wing. He wrote several of those decisions, sometimes using the soaring language that marked his majority opinion on Tuesday.

“The Eighth Amendment’s protection of dignity,” he wrote, “reflects the nation we have been, the nation we are, and the nation we aspire to be. This is to affirm that the nation’s constant, unyielding purpose must be to transmit the Constitution so that its precepts and guarantees retain their meaning and force.”

The court returned Mr. Hall’s case to the lower courts for a fresh assessment of his condition. “Freddie Lee Hall may or may not be intellectually disabled,” Justice Kennedy wrote, “but the law requires that he have the opportunity to present evidence of his intellectual disability, including deficits in adaptive functioning over his lifetime.”

    Court Rules Against Florida I.Q. Rule in Death Cases,
    NYT, 27.5.2014,
    http://www.nytimes.com/2014/05/28/us/
    court-rules-against-florida-iq-rule-in-death-cases.html

Alito Orders Suspension of Execution

in Missouri

MAY 20, 2014
The New York Times
By THE ASSOCIATED PRESS

BONNE TERRE, Mo. — Justice Samuel A. Alito Jr. of the United States Supreme Court late Tuesday issued an order halting the planned execution of a Missouri inmate.

Justice Alito’s order did not offer an explanation of why he had suspended the scheduled execution of Russell Bucklew, but it indicated that he or the Supreme Court would have more to say about the matter.

The order was issued shortly after the full United States Court of Appeals for the Eighth Circuit lifted a stay of execution granted hours earlier by a three-judge panel of that court. The panel had issued the stay over concerns that a rare medical condition Mr. Bucklew has could cause him undue suffering during the lethal injection.

Mr. Bucklew was scheduled to die by lethal injection at 12:01 a.m. Wednesday.

The 2-to-1 ruling by the panel said Mr. Bucklew’s “unrebutted medical evidence demonstrates the requisite sufficient likelihood of unnecessary pain and suffering beyond the constitutionally permissible amount inherent in all executions.”

The execution would have been the first in the nation after a botched lethal injection in Oklahoma last month left a condemned man writhing on a gurney before he died of a heart attack more than 40 minutes after the procedure began.

Mr. Bucklew, 46, has a congenital condition known as cavernous hemangioma that causes weakened and malformed blood vessels, as well as tumors in his nose and throat.

Mr. Bucklew told The Associated Press by telephone last week that he was scared of what might happen.

“The state does not have the right to inflict extreme, torturous pain during an execution,” said one of his lawyers, Cheryl Pilate. “We still hope that Mr. Bucklew’s grave medical condition and compromised airway will persuade the governor or a court to step back from this extremely risky execution.”

A version of this article appears in print on May 21, 2014,

on page A20 of the New York edition with the headline:

Alito Orders Suspension of Execution in Missouri.

    Alito Orders Suspension of Execution in Missouri, NYT, 20.5.2014,
    http://www.nytimes.com/2014/05/21/us/
    citing-illness-court-blocks-execution-in-missouri.html

A Big Win for the Prayer Lobby

MAY 7, 2014
By KATHERINE STEWART
The New York Times
The Opinion Pages | Op-Ed Contributor

IF you listened to Justice Anthony M. Kennedy of the Supreme Court and his fellow conservatives on the bench this week, you might think the court’s 5-4 decision in the case of Town of Greece v. Galloway was no big deal. So what if a town in upstate New York typically opens its council meetings with prayers that acknowledge “the saving sacrifice of Jesus Christ on the cross”?

If you listened to the people who shepherded the case as it ascended the judicial hierarchy, however, the decision represents one of their biggest victories to date. It “wasn’t just an answer on prayer — it was an answer to prayer!” read a statement by the Family Research Council. The council is one of a host of organizations guided by the religious liberty advocacy group the Alliance Defending Freedom that backed the defendants with legal resources.

To understand why the case’s backers were so cock-a-hoop, you must first know something about the long game being played by the religious right. The goal is to get back to a “soft” establishment of religion in America — that is, a system in which formal guarantees of religious freedom and the official separation of church and state remain in place, but one religion is informally or implicitly acknowledged as the “approved” religion of the majority and a legitimate basis for public policy.

This was more or less the situation in the United States during the first half of the 19th century. In 1811, the New York Supreme Court upheld a conviction for blasphemy (the archetypal union of church and state) on the grounds that the state had an interest in punishing offenses to the religious sensibilities of the Protestant majority. Back then, nativist Protestants imposed their version of the Bible in public schools, while Catholics rioted in protest and placed their children in parochial schools.

Through the 19th and 20th centuries, however, the judicial thinking on church-state issues evolved, and the “soft” establishment became much harder to justify. The United States Supreme Court introduced the “Lemon test,” for example. Named for a 1971 case the court heard, this required that legislation concerning religion should not result in “excessive government entanglement” with religious affairs. The Supreme Court also increasingly took the view that government should abstain from any activity wherein a reasonable observer might perceive it to be endorsing religion.

Today, groups like the A.D.F. — which also represents Conestoga Wood Specialties Corporation in its challenge to the contraception mandate in the Affordable Care Act — are deeply unhappy with the reigning jurisprudence on church-state separation. It would seem that they wish to undermine the Lemon test, which they consider “burdensome,” as a staging post to restoring a soft establishment of Christianity in the United States. This is where Greece v. Galloway comes in.

The first order of business is to remove objections by swiping aside the idea that soft forms of establishment exist at all. Here, the Greece decision delivers, substantially.

“Offense,” Justice Kennedy wrote in his majority opinion, “does not equate to coercion.” Justice Clarence Thomas, in the part of his concurring opinion joined by Justice Antonin Scalia, drew out the key implication: “To the extent coercion is relevant to the Establishment Clause analysis, it is actual legal coercion that counts — not the ‘subtle coercive pressures’ allegedly felt by respondents in this case.” In other words, religious observance counts as “establishment” only if you are compelled to kneel by law.

A second element of the plan for undermining concerns based on the First Amendment’s Establishment Clause is to reinterpret public acts as personal expressions of speech by private individuals. Thus, when the minister appointed by the municipal government of Greece bids “all rise,” the Supreme Court majority tells us, this is not an establishment of religion because the words are not uttered by public officials. And when the town leaders respond with a sign of the cross, that isn’t establishment either, because, just then, public officials are acting as private individuals.

Another prong in the assault on the Establishment Clause is to use neutrality among religious denominations as a wedge for inserting the (presumed) majority religion into state business. In theory, “neutrality” means giving every sect an equal shot at officiating prayer at Greece’s council meetings. In practice, the town government has unquestionably identified itself with what it takes to be the majority religion in the area.

In his concurring opinion, Justice Samuel A. Alito Jr. dismissed concerns about the blatantly sectarian tilt of the town’s proceedings, which were led exclusively by Christian ministers for nearly a decade, by pointing out that Jews make up a mere 3 percent of the local population and alleging that other non-Christian groups are no larger.

A final, crucial part of the strategy is to substitute history — or, more accurately, a particular mythologized version of history — for legal analysis. Here the A.D.F. and its allies have hit pay dirt in the Greece decision.

Justice Kennedy invoked an earlier, highly problematic decision in the case of Marsh v. Chambers to suggest that the usual legal tests were “unnecessary” because the “history supported the conclusion” that the prayers were compatible with the Establishment Clause. It is, however, preposterous to say that something is constitutional simply because it’s been done in the past.

The “history” here sustains a myth that early America had a single religion of “Christianity,” when, in fact, it was bitterly divided into antagonistic sects from the start. And many of America’s founders — James Madison, for example — were firmly opposed to such precedents of church-state entanglement as congressional chaplains.

The assault by the religious right on the Establishment Clause has been unfolding for two decades, in a number of landmark cases. Under cover of pursuing “religious freedom,” it has already succeeded in inserting fundamentalist religion into parts of America’s public education system. With Greece v. Galloway, it has now expanded the reach of this novel and destructive interpretation of the Establishment Clause. It is part of a project to “restore” a version of America that never was, and never can be.

Katherine Stewart is the author of “The Good News Club:

The Christian Right’s Stealth Assault on America’s Children.”

A version of this op-ed appears in print on May 8, 2014,

on page A27 of the New York edition with the headline:

A Big Win for the Prayer Lobby.

    A Big Win for the Prayer Lobby, NYT, 7.5.2014,
    http://www.nytimes.com/2014/05/08/opinion/a-big-win-for-the-prayer-lobby.html

A Defeat for Religious Neutrality

MAY 5, 2014
The New York Times
By THE EDITORIAL BOARD
The Opinion Pages | Editorial

The American values of pluralism and inclusion are central to the First Amendment, which forbids government from favoring or aligning itself with any particular religion or believers over nonbelievers.

In a lamentable ruling on Monday, the Supreme Court’s conservative majority brushed past those core values to allow the town of Greece, in upstate New York, to begin its town hall meetings with a sectarian prayer nearly always from a Christian “chaplain of the month.”

Justice Anthony Kennedy, writing for the majority, relied on the Supreme Court’s decision in Marsh v. Chambers, a 1983 case in which the court upheld the Nebraska Legislature’s practice of opening its sessions with a chaplain’s prayer, saying that such invocations were “deeply embedded in the history and tradition of this country.”

Yet, as Justice Elena Kagan emphasized in a persuasive dissent, determining whether a particular prayer program violates the First Amendment is a fact-specific exercise, and there are important distinctions between the practice in the Nebraska case and the practice in the New York town. Justice Kagan said a town-hall meeting “need not become a religion-free zone,” and that “legislative prayer has a distinctive constitutional warrant by virtue of tradition,” dating back to the first session of Congress. But she said the practice in the town of Greece does not fit that tradition, for starters, because, unlike the Nebraska case, which involved an audience of elected legislators, the town hall meetings involved ordinary citizens, some there to petition their local government for permits, zoning variances and other individualized matters.

It is a situation that requires “special care,” as Justice Kagan put it, to make sure the prayers that the citizens hear “seek to include, rather than serve to divide” and reinforce that citizens of all faiths are equal participants in government. The town board ignored that need by never reaching out and arranging for non-Christians to offer the invocation, except in a few instances around the time the lawsuit was filed. Nearly all the prayers at the Greece town meetings contained purely Christian references (as in, “We acknowledge the saving sacrifice of Jesus Christ on the cross”). By contrast, the chaplain in the Nebraska case, a Presbyterian minister, refrained from making references to Jesus Christ after a legislator complained.

Justice Kennedy cited the town board’s purported policy of being open to having prayers delivered by ministers or laymen of other faiths, but that policy was never publicized. Nor was it made clear at meetings that town residents need not participate in the prayer. It was disappointing that the Justice Department urged the justices to uphold the prayer practice in the town hall meetings, which skirted the constitutional principle of religious neutrality and caused some residents to feel like outsiders.

A version of this editorial appears in print on May 6, 2014,

on page A24 of the New York edition with the headline:

A Defeat for Religious Neutrality.

    A Defeat for Religious Neutrality, NYT, 5.5.2014,
    http://www.nytimes.com/2014/05/06/opinion/a-defeat-for-religious-neutrality.html

Town Meetings Can Have Prayer,

Justices Decide

MAY 5, 2014
The New York Times
By ADAM LIPTAK

WASHINGTON — In a major decision on the role of religion in government, the Supreme Court on Monday ruled that the Constitution allows town boards to start their sessions with sectarian prayers. The ruling, by a 5-to-4 vote, divided the court’s more conservative members from its liberal ones, and their combative opinions reflected very different views of the role of faith in public life, in contemporary society and in the founding of the Republic.

Justice Anthony M. Kennedy, writing for the majority, said that a town in upstate New York had not violated the Constitution by starting its public meetings with a prayer from a “chaplain of the month” who was almost always Christian and who sometimes used distinctly sectarian language. The prayers were ceremonial, Justice Kennedy wrote, and served to signal the solemnity of the occasion.

The ruling cleared the way for sectarian prayers before meetings of local governments around the nation with only the lightest judicial supervision.

The decision built on one from 1983 that allowed prayers at the start of legislative sessions. The two sides on Monday disagreed about whether town board meetings, which include not only lawmakers and spectators but also citizens seeking to do business with the government, are meaningfully different from legislative sessions.

Justice Kennedy said the prayers in both settings were “meant to lend gravity to the occasion and reflect values long part of the nation’s heritage.”

Justice Elena Kagan said in dissent that the town’s practices could not be reconciled “with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.”

She said the important difference between the 1983 case and the new one was that “town meetings involve participation by ordinary citizens.”

She did not propose banning prayer, Justice Kagan said, but only requiring officials to take steps to ensure “that opening prayers are inclusive of different faiths, rather than always identified with a single religion.”

Town officials in Greece, N.Y., near Rochester, said members of all faiths, and atheists, were welcome to give the opening prayer. In practice, however, almost all of the chaplains were Christian. Some prayers were explicitly sectarian, with references, for instance, to “the saving sacrifice of Jesus Christ on the cross.”

Two town residents sued, saying the prayers ran afoul of the First Amendment’s prohibition of government establishment of religion. They said the prayers offended them and, in Justice Kennedy’s words, “made them feel excluded and disrespected.”

But Justice Kennedy said the relevant constitutional question was not whether they were offended. “Adults often encounter speech they find disagreeable,” he wrote. “Legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate.”

Justice Kennedy said traditions starting with the first Congress supported the constitutionality of ceremonial prayers at the start of legislative sessions. Both Houses of Congress, he said, have appointed and paid for official chaplains almost without interruption ever since. Legislative prayer, he said, is “a practice that was accepted by the framers and has withstood the critical scrutiny of time and political change.”

In a long footnote, Justice Kagan disputed that assertion, saying some of the most prominent members of the founding generation — George Washington, Thomas Jefferson and James Madison — took pains to keep sectarian language away from public life. “The demand for neutrality among religions is not a product of 21st century ‘political correctness,’ ” she wrote, “but of the 18th century view.”

But Justice Kennedy said legislative prayers may have sectarian content and need not “be addressed only to a generic God.” He added that it would be perilous for courts to decide when prayers crossed a constitutional line and became impermissibly sectarian.

“To hold that invocations must be nonsectarian,” he wrote, “would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact.”

Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. joined all of Justice Kennedy’s opinion, and Justices Antonin Scalia and Clarence Thomas most of it.

Justice Kennedy did suggest that some prayers may be unacceptable if offered consistently, including ones that “denigrate nonbelievers or religious minorities, threaten damnation or preach conversion.” But without proof of “a pattern of prayers that over time denigrate, proselytize or betray an impermissible government purpose,” he wrote, “a challenge based solely on the content of a prayer will not likely establish a constitutional violation.”

Town officials had tried, he said, to recruit members of various faiths to offer prayers.

In dissent, Justice Kagan said they had not tried hard enough. “So month in and month out for over a decade,” she wrote, “prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits.”

In 1983, in Marsh v. Chambers, the Supreme Court upheld the Nebraska Legislature’s practice of opening its legislative sessions with an invocation from a paid Presbyterian minister, saying that such ceremonies were “deeply embedded in the history and tradition of this country.”

Justice Kagan, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor, said the case from Greece, N.Y., was different. The prayers at the town board meetings were often explicitly sectarian, they said, and residents were forced to listen to them in order to participate in government.

“No one can fairly read the prayers from Greece’s town meetings as anything other than explicitly Christian — constantly and exclusively so,” Justice Kagan wrote in her dissent in the case, Town of Greece v. Galloway, No. 12-696.

Moreover, she said, the clergy “put some residents to the unenviable choice of either pretending to pray like the majority or declining to join its communal activity, at the very moment of petitioning their elected leaders.”

In a concurrence with the majority opinion, Justice Alito called the dissent’s qualms “really quite niggling.”

That comment, Justice Kagan responded, “says all there is to say about the difference between our respective views.”

A version of this article appears in print on May 6, 2014,

on page A1 of the New York edition with the headline:

Town Meetings Can Have Prayer, Justices Decide.

    Town Meetings Can Have Prayer, Justices Decide, NYT, 5.5.2014,
    http://www.nytimes.com/2014/05/06/nyregion/
    supreme-court-allows-prayers-at-town-meetings.html

Supreme Injustice

MAY 6, 2014
The New York Times
The Opinion Pages
Contributing Op-Ed Writer

The Supreme Court’s ruling earlier this spring in McCutcheon v F.E.C., which increased the amount of money donors can contribute to political campaigns for federal office, has added new fuel to an 80-year-old debate between those who contend that the Supreme Court decides cases on the basis of abstract principles of law and those who argue that judicial rulings are based primarily on political and economic considerations.

Liberal critics of the Roberts court now draw a comparison between the court’s rulings in campaign finance cases like McCutcheon and Citizens United v F.E.C. (2010), both of which expand the ability of the rich to contribute to candidates and decisions in two recent voting rights cases, Crawford v. Marion County Election Board (2008), which imposed onerous voter-identification requirements, and last year’ Shelby County v Holder, which overturned Department of Justice preclearance requirements in Southern states. Both of these decisions restrict the political influence of the poor and of minorities.

The debate over the ideological motivations of the judiciary has a long history. In the 20th century, this debate placed on one side, in the words of former Yale law professor Grant Gilmore, those who believed that “the law was a symmetrical structure of logical propositions, all neatly dovetailed. The truth or error, the rightness or wrongness, of a judicial decision could be determined by merely checking to see whether it fitted into the symmetrical structure.” On the other side were those who believed that the “rules of law do not so much explain as conceal the bases of judicial decision. A judge’s holding in a case is an ad hoc response to a unique state of facts, rationalized, after the event, with a dissimulation more or less conscious, and fitted willy-nilly into the Procrustean bed of approved doctrine. The motivations of the judicial response are buried, obscure, unconscious and-even to the judge – unknowable.”

This dispute flared in more contemporary terms last year with the publication of “How Business Fares in the Supreme Court,” an article in The Minnesota Law Review, which concluded that “the Roberts Court is much friendlier to business than either the Burger or Rehnquist Courts.” The argument gained credibility in part because one of its authors, Richard Posner, is a widely respected conservative jurist, appointed to the Seventh Circuit of the United States Court of Appeals by Ronald Reagan.

Despite Posner’s imprimatur, conservative critics lashed out, provoking an often hostile confrontation between those arguing that business interests control the court’s conservative majority, and those who contend that the majority acts on the basis of neutral and unbiased understanding of the law.

Is the Supreme Court operating a two-tier system of justice — one for the well off, one for the poor? Larry Norden, deputy director of the Brennan Center at New York University Law School, created a stir when, at an April 24 campaign finance conference hosted by Demos, a liberal public policy think tank, he suggested that the court majority has in fact adopted a double standard.

Norden told the gathering that the conservative majority on the court has shown more concern for the First Amendment rights of wealthy donors than for the voting rights of minorities. In an April 30 post on the Brennan Center blog, Norden, writing with Wendy Weiser, who directs the center’s democracy program, elaborated on this thesis: “The Supreme Court has made clear that it will judge attempts to restrict the monetary kind of ‘participation’ very strictly,” they wrote. “By contrast, restrictions on voting — which a majority of voting-age citizens do — have been judged far more leniently. In other words, in the Roberts Court era, it is much easier to get away with curbing participation by the many than participation by the select few.”

Norden and Weiser conclude that the Court “will use very different standards for evaluating restrictions on the fundamental ‘right to participate in electing political leaders’ when voting access or the ability to spend money in campaigns are at stake.”

In the upper echelons of the legal community, where practitioners value their reputations for honesty and integrity, this is a serious charge. But how seriously should the charge be taken? Is Norden spinning an argument favorable to his allies in the campaign-finance reform and civil rights movements, or does he have a compelling case? I sought out scholars and practitioners from across the political spectrum. My initial forays (but not my most interesting findings) produced limited support for the two Brennan Center officials.

Jeffery Rosen, the president and C.E.O. of the National Constitution Center, as well as a law professor at George Washington University and the legal affairs editor of The New Republic, cast doubt on the Norden argument: “If the point is that the Court didn’t take seriously the voting rights of minorities in unrelated cases, such as the Shelby case striking down parts of the Voting Rights Act, I don’t think that’s a good analogy — the voting rights at issue in voting rights cases are very different than the First Amendment interests the Court was discussing.”

Robert Bauer, one of the Democratic Party’s leading campaign-finance experts and White House counsel earlier in the Obama administration, was similarly skeptical. “The observations strike me as far too broad, and not saying a whole lot about why the court majority on these issues might put itself in the position that it would be perceived this way,” he wrote in an email. “While I wouldn’t doubt that the natural sympathies of some Court members may run in favor the well-to-do, there is much more here in the way of distrust of the State and those who actually control it may explain to their suspicion of campaign finance.”

On the matter of voting rights, Bauer wrote, the court’s conservative majority has a deep “suspicion of the expansion of federal judicial power, such as through the application of aggressive principles of equal protection, at the expense of state authority and their view of ‘federalism’.”

Brad Smith, a former Republican appointee to (and chairman of) the Federal Election Commission who is currently a professor at Capitol University Law School in Columbus, Ohio, was downright hostile in his emailed response: “Voting Rights and Free Speech are different areas of law, connected only by their association with elections,” he wrote. “The more relevant comparison because we’re comparing speech to speech: the Court’s liberal minority (and people like Norden and the Brennan Center) treat political speech less favorably than pornography, simulated child pornography, and nude dancing.”

Regarding campaign finance, Smith contended that the court majority “plainly seeks to put some teeth back into ‘exacting scrutiny,’ and it is no longer willing to give the reformers a blank check to regulate, as was the trend in the last decade or more of the Rehnquist Court. It’s a pretty straightforward logic: the First Amendment, if it means anything, must mean that there is at least a ‘presumption’ against government regulation of political speech, and that presumption must be strong, given the plain language of the Amendment.”
Continue reading the main story

Jonathan Adler, a law professor at Case Western Reserve and a contributing editor to the National Review Online, wrote in response to my inquiry “it’s overly reductionistic to try and portray the court with sloganistic characterizations (e.g. pro-business, etc.).” Adler added that the court’s “overall orientation in business-related cases” is hostile “to efforts to use courts to achieve social policy goals.”

In contrast to the doubters, Geoffrey Stone, an expert in constitutional law at the University of Chicago, has done his own wide-ranging, if unusual, study of recent court decisions.

Last year, Stone asked fellow law professors to name the most significant constitutional decisions handed down by the Supreme Court between 2000 and 2013. From those suggestions, Stone created a master list of the 20 most important cases of that time period. These cases include rulings on the Violence Against Women Act; Bush v. Gore; parochial school vouchers; a challenge to a “three strikes” law; affirmative action in higher education; the prohibition of “same-sex sodomy”; the death penalty for minors; the display of the Ten Commandments in a county courthouse; a redevelopment plan affecting property rights; two cases involving Guantánamo detainees; partial birth abortion; integration in public schools; gun regulation; the Affordable Care Act; the federal Defense of Marriage Act; Crawford v. Marion County; Citizens United; and Shelby County v. Holder.

The full list can be found in Stone’s 2013 paper, “The Behavior of Supreme Court Justices When Their Behavior Counts the Most.”

The five very conservative justices who served on the court from 2000 to 2013 – including four still on the bench, John Roberts, Samuel Alito, Antonin Scalia and Clarence Thomas, and former Chief Justice William Rehnquist – “voted the conservative line in these 20 cases 98.5 percent of the time,” Stone found. The six moderate liberals – including four still on the court, Stephen Breyer, Ruth Ginsburg, Elena Kagan and Sonia Sotomayor, along with former justices John Paul Stevens and David Souter – “voted for the ‘liberal’ policy position 97.5 percent of the time.” Altogether, these liberal and conservative justices took a total of 148 stands and in 145, their positions “tracked the presumed policy preferences of conservative and liberal legislators. Put simply, they voted in what seems to have been an ideologically result-oriented manner 98 percent of the time.”

The 20 cases revealed the deep polarization between the right and left wings of the court. When he looked at all constitutional cases, Stone found that the moderate liberal and very conservative justices agreed 32 percent of the time, but in these 20 most important and highly consequential cases, they agreed only 3 percent of the time. “First, the justices are much more polarized along ideological lines in the most important constitutional cases,” Stone wrote. “Second, the justices appear to vote in a much more result-oriented manner in the most important constitutional cases.”

To test these two theses, Stone examined the underlying rationale of the decisions in terms of judicial activism – overturning precedent or ruling congressional actions unconstitutional (commonly associated with liberalism) and judicial restraint (commonly associated with conservatism.

According to Stone, liberal legal thinkers grant “a great deal of deference to the elected branches of government – except when such deference would effectively abdicate the responsibility the Framers had imposed upon the judiciary to serve as an essential check against the inherent dangers of democratic majoritarianism.” Circumstances justifying liberal judicial activism, Stone wrote, occur “when the governing majority systematically disregarded the interests of a historically underrepresented group, such as blacks, ethnic minorities, political dissidents, religious dissenters, and persons accused of crime, and when there was a risk that a governing majority was using its authority to stifle its critics, entrench the political status quo, and/or perpetuate its own political power.”

In examining the votes of the moderate liberals on the court in the 20 key cases, Stone contends that there is an intellectual integrity underpinning their decision-making. “Thus, in my view, the approach reflected in the voting patterns of Justices Stevens, Souter, Ginsburg, Breyer, Sotomayor and Kagan in these twenty cases seems well grounded” and is consistent with “their distinctive understanding of the special responsibility of courts in our constitutional system.”

Stone found no such consistency in votes of the 5 most conservative justices in the 20 major cases. The pattern of their decisions cannot, he argued, be explained by either of the two major intellectual themes of conservative legal thinking, judicial restraint and originalism.

“Something is motivating them other than a completely neutral detachment. They chose to be activist in certain types of areas, and strike down law when laws disadvantage the wealthy,” Stone said in my telephone conversation with him. The conservative majority takes “an aggressive, muscular approach” in striking down a key provision of the 1965 Voting Rights Act, but then “suddenly becomes very passive in deferring to the legislature in the voter ID case.”

In his study, Stone concluded that in these cases, the votes of members of the court’s right flank were “determined first-and-foremost by their own personal policy preferences.” The court’s conservatives “no doubt believe that they decide each case as it comes to them, like umpires calling balls and strikes. But given the strikingly ideological pattern of their votes in these cases, and the absence of any plausible theory to explain them, this is simply not credible.”

Stone’s critique of the conservative justices applies to far more than the legal system. Right wing foundations have shown greater willingness than their liberal counterparts to aggressively pursue explicitly political agendas. Just compare the hard right Heritage Foundation to the comparatively centrist work of the Brookings Institution. Conservative tax exempt “social welfare” organizations have spent far larger sums on defeating Democratic adversaries than liberal 501(c)(4) groups have invested in ousting Republicans.

Conservatives in Congress, far more than their liberal counterparts, have treated issues, including such crucial legislation as the debt ceiling, in terms of political gain, as opposed to acting, despite their claims to the contrary, with an eye toward the national interest. This was a stance made explicit by Republican Senate Minority Leader Mitch McConnell in 2010 when he famously told the National Journal that “the single most important thing we want to achieve is for President Obama to be a one-term president.”

The legal debate is just one part of the political struggle between left and right. The intensity and irreconcilability of the legal conflict reflects the widening gulf separating the two coalitions. This is a dispute that can only be resolved at the ballot box, which explains why conservative justices have focused so intently on protecting the political power of the rich in campaign finance cases and restricting the political leverage of the poor and minorities in voting rights cases.

    Supreme Injustice, NYT, 6.5.2014,
    http://www.nytimes.com/2014/05/07/opinion/edsall-supreme-injustice.html

Town Meetings Can Have Prayer,

Justices Decide

MAY 5, 2014
The New York Times
By ADAM LIPTAK

WASHINGTON — In a major decision on the role of religion in government, the Supreme Court on Monday ruled that the Constitution allows town boards to start their sessions with sectarian prayers. The ruling, by a 5-to-4 vote, divided the court’s more conservative members from its liberal ones, and their combative opinions reflected very different views of the role of faith in public life, in contemporary society and in the founding of the Republic.

Justice Anthony M. Kennedy, writing for the majority, said that a town in upstate New York had not violated the Constitution by starting its public meetings with a prayer from a “chaplain of the month” who was almost always Christian and who sometimes used distinctly sectarian language. The prayers were ceremonial, Justice Kennedy wrote, and served to signal the solemnity of the occasion.

The ruling cleared the way for sectarian prayers before meetings of local governments around the nation with only the lightest judicial supervision.

The decision built on one from 1983 that allowed prayers at the start of legislative sessions. The two sides on Monday disagreed about whether town board meetings, which include not only lawmakers and spectators but also citizens seeking to do business with the government, are meaningfully different from legislative sessions.

Justice Kennedy said the prayers in both settings were “meant to lend gravity to the occasion and reflect values long part of the nation’s heritage.”

Justice Elena Kagan said in dissent that the town’s practices could not be reconciled “with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.”

She said the important difference between the 1983 case and the new one was that “town meetings involve participation by ordinary citizens.”

She did not propose banning prayer, Justice Kagan said, but only requiring officials to take steps to ensure “that opening prayers are inclusive of different faiths, rather than always identified with a single religion.”

Town officials in Greece, N.Y., near Rochester, said members of all faiths, and atheists, were welcome to give the opening prayer. In practice, however, almost all of the chaplains were Christian. Some prayers were explicitly sectarian, with references, for instance, to “the saving sacrifice of Jesus Christ on the cross.”

Two town residents sued, saying the prayers ran afoul of the First Amendment’s prohibition of government establishment of religion. They said the prayers offended them and, in Justice Kennedy’s words, “made them feel excluded and disrespected.”

But Justice Kennedy said the relevant constitutional question was not whether they were offended. “Adults often encounter speech they find disagreeable,” he wrote. “Legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate.”

Justice Kennedy said traditions starting with the first Congress supported the constitutionality of ceremonial prayers at the start of legislative sessions. Both Houses of Congress, he said, have appointed and paid for official chaplains almost without interruption ever since. Legislative prayer, he said, is “a practice that was accepted by the framers and has withstood the critical scrutiny of time and political change.”

In a long footnote, Justice Kagan disputed that assertion, saying some of the most prominent members of the founding generation — George Washington, Thomas Jefferson and James Madison — took pains to keep sectarian language away from public life. “The demand for neutrality among religions is not a product of 21st century ‘political correctness,’ ” she wrote, “but of the 18th century view.”

But Justice Kennedy said legislative prayers may have sectarian content and need not “be addressed only to a generic God.” He added that it would be perilous for courts to decide when prayers crossed a constitutional line and became impermissibly sectarian.

“To hold that invocations must be nonsectarian,” he wrote, “would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact.”

Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. joined all of Justice Kennedy’s opinion, and Justices Antonin Scalia and Clarence Thomas most of it.

Justice Kennedy did suggest that some prayers may be unacceptable if offered consistently, including ones that “denigrate nonbelievers or religious minorities, threaten damnation or preach conversion.” But without proof of “a pattern of prayers that over time denigrate, proselytize or betray an impermissible government purpose,” he wrote, “a challenge based solely on the content of a prayer will not likely establish a constitutional violation.”

Town officials had tried, he said, to recruit members of various faiths to offer prayers.

In dissent, Justice Kagan said they had not tried hard enough. “So month in and month out for over a decade,” she wrote, “prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits.”

In 1983, in Marsh v. Chambers, the Supreme Court upheld the Nebraska Legislature’s practice of opening its legislative sessions with an invocation from a paid Presbyterian minister, saying that such ceremonies were “deeply embedded in the history and tradition of this country.”

Justice Kagan, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor, said the case from Greece, N.Y., was different. The prayers at the town board meetings were often explicitly sectarian, they said, and residents were forced to listen to them in order to participate in government.

“No one can fairly read the prayers from Greece’s town meetings as anything other than explicitly Christian — constantly and exclusively so,” Justice Kagan wrote in her dissent in the case, Town of Greece v. Galloway, No. 12-696.

Moreover, she said, the clergy “put some residents to the unenviable choice of either pretending to pray like the majority or declining to join its communal activity, at the very moment of petitioning their elected leaders.”

In a concurrence with the majority opinion, Justice Alito called the dissent’s qualms “really quite niggling.”

That comment, Justice Kagan responded, “says all there is to say about the difference between our respective views.”

A version of this article appears in print on May 6, 2014,

on page A1 of the New York edition with the headline:

Town Meetings Can Have Prayer, Justices Decide.

    Town Meetings Can Have Prayer, Justices Decide, NYT, 5.5.2014,
    http://www.nytimes.com/2014/05/06/nyregion/
    supreme-court-allows-prayers-at-town-meetings.html

Court Backs Michigan on Affirmative Action

APRIL 22, 2014
The New York Times
By ADAM LIPTAK

WASHINGTON — In a fractured decision that revealed deep divisions over what role the judiciary should play in protecting racial and ethnic minorities, the Supreme Court on Tuesday upheld a Michigan constitutional amendment that bans affirmative action in admissions to the state’s public universities.

The 6-to-2 ruling effectively endorsed similar measures in seven other states. It may also encourage more states to enact measures banning the use of race in admissions or to consider race-neutral alternatives to ensure diversity.

States that forbid affirmative action in higher education, like Florida and California, as well as Michigan, have seen a significant drop in the enrollment of black and Hispanic students in their most selective colleges and universities.

In five separate opinions spanning more than 100 pages, the justices set out starkly conflicting views. The justices in the majority, with varying degrees of vehemence, said that policies affecting minorities that do not involve intentional discrimination should be decided at the ballot box rather than in the courtroom.

But Justice Sonia Sotomayor, in the longest, most passionate and most significant dissent of her career, said the Constitution required special vigilance in light of the history of slavery, Jim Crow and “recent examples of discriminatory changes to state voting laws.”

Her opinion, longer than the four other opinions combined, appeared to reflect her own experiences with affirmative action at Princeton and Yale Law School. “I had been admitted to the Ivy League through a special door,” she wrote in her best-selling memoir, “My Beloved World.” For years, she wrote, “I lived the day-to-day reality of affirmative action.”

In contrast to Justice Sotomayor’s outraged dissent, Justice Anthony M. Kennedy’s controlling opinion for three justices took pains to say that the decision was a modest one.

“This case is not about how the debate about racial preferences should be resolved,” he wrote, in an opinion joined by Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. “It is about who may resolve it. There is no authority in the Constitution of the United States or in this court’s precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters.”

His announcement of the decision from the bench was businesslike. Signaling deep displeasure, Justice Sotomayor summarized her dissent from the bench, an unusual move that happens perhaps three times a term. She said the initiative put minorities to a burden not faced by other college applicants. Athletes, children of alumni and students from underrepresented parts of the state, she said, remained free to try to persuade university officials to give their applications special weight. “The one and only policy a Michigan citizen may not seek through this long-established process,” she wrote, “is a race-sensitive admissions policy.” That difference, she said, violates the Constitution’s equal protection clause.

“The Constitution does not protect racial minorities from political defeat,” she wrote. “But neither does it give the majority free rein to erect selective barriers against racial minorities.” Justice Ruth Bader Ginsburg joined the dissent.

Justice Sotomayor seemed to mock one of Chief Justice Roberts’s most memorable lines. In a 2007 decision that limited the use of race to achieve integration in public school systems, he wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Justice Sotomayor recast the line. “The way to stop discrimination on the basis of race,” she wrote, “is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”

Chief Justice Roberts responded in a brief concurrence, saying that affirmative action, and the stigma that he said could accompany it, may do more harm than good. “People can disagree in good faith on this issue,” he added, “but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”

In earlier cases, including one from last June challenging the admissions policies of the University of Texas, the court has said that race-conscious selection can be constitutionally permissible in states that wish to use them. In a concurrence, Justice Antonin Scalia, joined by Justice Clarence Thomas, said those decisions were wrong, and he suggested that they were in peril. He added that the question in Tuesday’s case, Schuette v. Coalition to Defend Affirmative Action, No. 12-682, was laughably easy.

“Even taking this court’s sorry line of race-based admissions cases as a given,” he wrote, “I find the question presented only slightly less strange: Does the equal protection clause forbid a state from banning a practice that the clause barely — and only provisionally — permits?”

He added that courts should resist involving judges “in the dirty business of dividing the nation into racial blocs.”

“That task is as difficult as it is unappealing,” Justice Scalia said, giving an example: “Does a half-Latin, half-American Indian have Latino interests, American-Indian interests, both, half of both?”

The most surprising opinion came from Justice Stephen G. Breyer, who abandoned his usual liberal allies to vote with the majority, although he did not adopt the majority’s reasoning. The Constitution, he said, permits but does not require states to use race-conscious admissions for educational diversity.

In general, he said, “the Constitution foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of these programs.”

Justice Elena Kagan recused herself, presumably because she had worked on the case as United States solicitor general.

The Michigan initiative, known as Proposal 2, was a response to Grutter v. Bollinger, a 2003 Supreme Court decision that upheld the use of race as one factor among many in law school admissions to ensure educational diversity.

Proposal 2, approved in 2006 by 58 percent of Michigan’s voters, amended the State Constitution to prohibit discrimination or preferential treatment in public education, government contracting and public employment. Groups favoring affirmative action sued to block the part of the law concerning higher education.

In 2012, the United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled by a vote of 8 to 7 that the initiative violated the federal Constitution’s equal protection clause. The appeals court majority said the problem with the law was that it restructured the state’s political process by making it harder for disfavored minorities to press for change.

Justice Sotomayor agreed, saying citizens seeking to have the state’s public universities adopt race-conscious admissions plans had to “undertake the daunting task of amending the State Constitution.”

Justice Kennedy said that was as it should be.

“Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice,” he wrote. “That history demands that we continue to learn, to listen and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity.”

A version of this article appears in print on April 23, 2014,

on page A1 of the New York edition with the headline:

Justices Back Ban on Race as Factor in College Entry.

    Court Backs Michigan on Affirmative Action, NYT, 22.4.2014,
    http://www.nytimes.com/2014/04/23/us/
    supreme-court-michigan-affirmative-action-ban.html

Supreme Court Strikes Down

Overall Political Donation Cap

 

APRIL 2, 2014
The New York Times
By ADAM LIPTAK

WASHINGTON — The Supreme Court on Wednesday continued its abolition of limits on election spending, striking down a decades-old cap on the total amount any individual can contribute to federal candidates in a two-year election cycle.

The ruling, issued near the start of a campaign season, will very likely increase the role money plays in American politics.

The 5-to-4 decision, with the court’s more conservative members in the majority, echoed Citizens United, the 2010 decision that struck down limits on independent campaign spending by corporations and unions.

Wednesday’s decision seemed to alter campaign finance law in subtle but important ways, notably by limiting how the government can justify laws said to restrict the exercise of First Amendment rights in the form of campaign contributions.

The court’s 88-page decision reflected sharply different visions of the meaning of the First Amendment and the role of government in regulating elections, with the majority deeply skeptical of government efforts to control participation in politics, and the minority saying that such oversight was needed to ensure a functioning democracy.

Chief Justice John G. Roberts Jr., writing for four justices in the controlling opinion, said the overall limits could not survive First Amendment scrutiny. “There is no right in our democracy more basic,” he wrote, “than the right to participate in electing our political leaders.”

In a dissent from the bench, Justice Stephen G. Breyer called the majority opinion a disturbing development that raised the overall contribution ceiling to “the number infinity.”

“If the court in Citizens United opened a door,” he said, “today’s decision may well open a floodgate.”

Such oral dissents are rare, and they signal deep disagreements. But Chief Justice Roberts and Justice Breyer noted from the bench that the other side’s arguments were well presented.

Wednesday’s decision did not affect familiar base limits on contributions from individuals to candidates, currently $2,600 per candidate in primary and general elections. But it said that overall limits of $48,600 by individuals every two years for contributions to all federal candidates violated the First Amendment, as did separate aggregate limits on contributions to political party committees, currently $74,600.

In his written opinion, Justice Breyer said Wednesday’s decision would allow “a single individual to contribute millions of dollars to a political party or to a candidate’s campaign.” He was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

The ruling, which goes in effect in a matter of weeks, concerned only contributions from individuals. Federal law continues to ban direct contributions by corporations and unions, though they remain free to spend unlimited sums through “super PACs” and similar vehicles.

The case, McCutcheon v. Federal Election Commission, No. 12-536, was brought by Shaun McCutcheon, an Alabama businessman, and the Republican National Committee. Mr. McCutcheon, who had contributed a total of about $33,000 to 16 candidates for federal office in the 2012 election cycle, said he had wanted to give $1,776 each to 12 more but was stopped by the overall cap for individuals. The party committee said it wanted to receive contributions above the legal limit for political committees.

In an interview last fall, Mr. McCutcheon said his goal was to encourage the adoption of conservative principles. “To me,” he said, “being a conservative means smaller government and more freedom.”

Chief Justice Roberts said the core purpose of the First Amendment was to protect political speech from government interference, even if many people might welcome it.

“They would be delighted to see fewer television commercials touting a candidate’s accomplishments or disparaging an opponent’s character,” he wrote. “Money in politics may at times seem repugnant to some, but so, too, does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests and Nazi parades — despite the profound offense such spectacles cause — it surely protects political campaign speech despite popular opposition.”

The decision chipped away at the central distinction drawn in Buckley v. Valeo, the court’s seminal 1976 campaign finance decision. Independent spending, the court said in Buckley, is political speech protected by the First Amendment. But contributions may be capped, the court said then, in the name of preventing corruption. The court added in passing that aggregate contribution limits were a “quite modest restraint upon protected political activity” that “serves to prevent evasion” of the base limits.

Chief Justice Roberts said that brief passage on overall limits had to be reconsidered in light of regulatory developments and other factors. But he added that the Buckley decision’s general structure remained intact. “We see no need,” he said, “to revisit Buckley’s distinction between contributions and expenditures.”

The chief justice said that while the $2,600 base limits were also intact, the overall caps placed an unacceptable burden on “an individual’s right to participate in the public debate through political expression and political association.”

Leveling the playing field is not an acceptable interest for the government, Chief Justice Roberts said. Nor is “the possibility that an individual who spends large sums may garner ‘influence over or access to’ elected officials or political parties,” he added, quoting Citizens United.

The only acceptable justification, he said, was rooting out “quid pro quo corruption” or the appearance of it.

Justice Breyer said that analysis was too narrow. “The anticorruption interest that drives Congress to regulate campaign contributions is a far broader, more important interest than the plurality acknowledges,” he wrote. “It is an interest in maintaining the integrity of our public governmental institutions.”

“Where enough money calls the tune,” he wrote, “the general public will not be heard.”

The Roberts court has been consistently hostile to campaign finance limits. In a half-dozen earlier cases, the five more conservative justices have voted together, though Chief Justice Roberts and Justice Samuel A. Alito Jr. have sometimes taken a more incremental approach than the bolder one called for by Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas.

Wednesday’s decision is likely to increase overall campaign spending, but it may also rechannel some of it away from super PACs and toward candidates and parties.

“The existing aggregate limits may in fact encourage the movement of money away from entities subject to disclosure,” Chief Justice Roberts wrote. “Because individuals’ direct contributions are limited, would-be donors may turn to other avenues for political speech.” He was joined by Justices Alito, Kennedy and Scalia. Justice Thomas wrote a concurring opinion.

The main opinions spent many pages arguing over the possibility that the basic limits could be circumvented without the overall caps. Justice Breyer gave detailed examples, which Chief Justice Roberts dismissed as speculative and highly implausible. The chief justice added that Congress could address some perceived loopholes through earmark requirements, transfer restrictions, segregated accounts and mandated disclosure, though he did not say that those efforts would pass constitutional muster.

Justice Breyer said there was little hope that regulators would vigorously enforce even the existing limits.

More broadly, he said the decision was one “that substitutes judges’ understandings of how the political process works for the understanding of Congress; that fails to recognize the difference between influence resting upon public opinion and influence bought by money alone; that overturns key precedent; that creates huge loopholes in the law; and that undermines, perhaps devastates, what remains of campaign finance reform.”

A version of this article appears in print on April 3, 2014,

on page A1 of the New York edition with the headline:

Justices, 5-4, Void Key Spending Cap in Political Races.

    Supreme Court Strikes Down Overall Political Donation Cap, NYT, 2.4.2014,
    http://www.nytimes.com/2014/04/03/us/politics/
    supreme-court-ruling-on-campaign-contributions.html

Justices Seem Open

to Religious Claims by Companies

MARCH 25, 2014
The New York Times
By ADAM LIPTAK

WASHINGTON — In a long and lively argument that touched on medical science and moral philosophy, the Supreme Court on Tuesday seemed ready to accept that at least some for-profit corporations may advance claims based on religious freedom.

Such a ruling would echo the court’s 2010 decision in Citizens United, which recognized free speech rights for corporations. But it would be only a first step in the court’s analysis of the lawfulness of a part of the Affordable Care Act that requires many employers to provide insurance coverage for contraception.

The justices seemed closely divided along ideological lines on other parts of the case. But Justice Anthony M. Kennedy, who probably holds the crucial vote, seemed frustrated with some of the Obama administration’s positions.

The questioning was sometimes technical but often unusually blunt and direct.

Justice Kennedy asked Solicitor General Donald B. Verrilli Jr., for instance, whether for-profit corporations “could be forced in principle to pay for abortions” and be powerless to object on religious grounds.

Mr. Verrilli said that was right, though he added that there was no such law.

Chief Justice John G. Roberts Jr. jumped in. “Flesh it out a little more,” he said. “There is no law on the books that does what?”

Squirming, Mr. Verrilli said, “That requires for-profit corporations to provide abortions.”

Chief Justice Roberts looked puzzled. “I thought that’s what we had before us,” he said.

The two companies that challenged the law — Hobby Lobby, a chain of crafts stores, and Conestoga Wood Specialties, which makes furniture — say that some drugs and intrauterine devices are tantamount to abortion. Those claims are not generally accepted by scientists.

Mr. Verrilli said he did not question the sincerity of the companies’ beliefs. “With all due respect,” he added, “we’ve got about two million women who rely on the I.U.D. as a method of birth control in this country. I don’t think they think they are engaged in abortion in doing that.”

By the end of the argument, there seemed to be a tentative consensus that the two companies, both controlled by religious families, could be allowed to claim rights under the relevant law, the Religious Freedom Restoration Act of 1993, without opening the floodgates to objections from major public corporations.

“You picked great plaintiffs,” Justice Sonia Sotomayor told Paul D. Clement, a lawyer for the companies.

Chief Justice Roberts said the court could limit its decision to privately held corporations. “Whether it applies in the other situations is a question that we’ll have to await another case when a large publicly traded corporation comes in and says, ‘We have religious principles,’ ” he said, adding that this was “the sort of situation I don’t think is going to happen.”

Justice Samuel A. Alito Jr. asked about news reports that “Denmark recently prohibited kosher and halal slaughter methods because they believe that they are inhumane.”

“Now suppose,” he said, “Congress enacted something like that here. What would a corporation that is a kosher or halal slaughterhouse do? They would have no recourse whatsoever. They couldn’t even get a day in court.”

Justice Elena Kagan suggested that the two companies before the court could press their claims but should not win.

The justices signaled the importance of the case by scheduling 90 minutes for the argument rather than the usual hour. The first round of questions to Mr. Clement also seemed meant to establish how much was at stake.

Justice Kagan said the companies’ interpretation of the 1993 law could transform the legal system.

“Your understanding of this law, your interpretation of it, would essentially subject the entire U.S. Code to the highest test in constitutional law,” she said. It would allow, she continued, employers to object on religious grounds to laws banning sexual discrimination and child labor and to laws requiring a minimum wage and family leave.

Justice Sotomayor asked similar questions about the implications of a ruling in favor of the companies for blood transfusions, vaccines and “products made of pork.”

Mr. Clement responded that there was no reason to fear “a parade of horribles,” and that religious objections could be handled case by case.

Justice Kagan said that would be unwieldy. “Everything would be piecemeal, and nothing would be uniform,” she said.

Much of the argument concerned whether the coverage requirement imposed a serious burden on the companies, a threshold question under the 1993 law. The companies remained free, some justices said, not to offer health insurance at all, pay a tax and emerge financially better off. On that point, the court’s liberal wing seemed to have Justice Kennedy’s support.

“How is the employer hurt?” he asked.

But Chief Justice Roberts said that approach ignored another problem. “I thought that part of the religious commitment of the owners was to provide health care for its employees,” he said.

Justice Kennedy also seemed to side with his more liberal colleagues when they said religious objections that imposed burdens on others should not be allowed. Here, Justice Kennedy expressed solicitude for “the rights of the employees.”

“The employee may not agree with the religious beliefs of the employer,” he said. “Does the religious beliefs just trump? Is that the way it works?”

But Justice Kennedy also had significant and possibly crucial reservations about the Obama administration’s carrying out of the contraceptive coverage requirement. It was hard to see, he suggested, how the requirement could simultaneously be a compelling government interest and yet be subject to a web of exemptions and accommodations for religious groups and others.

A decision in the two consolidated cases — Sebelius v. Hobby Lobby Stores, No. 13-354, and Conestoga Wood Specialties v. Sebelius, No. 13-356 — is expected by the end of June, two years after a closely divided court upheld another provision of the Affordable Care Act, one requiring most Americans to obtain health insurance or pay a penalty.

At the time, the decision created tension and bitterness on the court. But the references to it on Tuesday were lighthearted.

When Mr. Clement said his clients would face annual penalties if they failed to provide health insurance, Justice Sotomayor corrected him, relying on a distinction that played a role in Chief Justice Roberts’s 2012 opinion upholding the law.

“It’s not called a penalty,” she said. “It’s called a tax.”

Chief Justice Roberts agreed, to laughter in the courtroom. “She’s right about that,” he said.

Later, Justice Kennedy, who dissented in the 2012 case, playfully asked Mr. Verrilli whether “the constitutionality of the whole act has to be examined before we accept your view.”

Mr. Verrilli’s response was also greeted with laughter. “I think it has been examined, Your Honor, is my recollection,” he said.

A version of this article appears in print on March 26, 2014,

on page A13 of the New York edition with the headline:

Justices Seem Open to Religious Claims by Companies.

    Justices Seem Open to Religious Claims by Companies,
    NYT, 25.3.2014,
    http://www.nytimes.com/2014/03/26/us/politics/
    conraceptive-coverage-challenge-supreme-court.html