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At year's end: Fasten your Supreme Court seat belt, bumpy ride ahead

By MICHAEL KIRKLAND, United Press International   |   Dec. 22, 2013 at 4:01 AM   |   Comments

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Paraphrasing Forrest Gump, "The rest of the U.S. Supreme Court term is like a box of chocolates -- you never know what you're gonna get."

Trying to predict which way the justices will jump on important cases brings to mind another Gump aphorism for the ink-stained wretches in the media: "Stupid is as stupid does."

The big dog in the rest of the Supreme Court term which ends when the justices "rise" for the summer recess -- when the supreme backsides leave their comfortable rocking chairs behind the bench -- is the challenge to the Affordable Care Act's contraception mandate.

The case demonstrates a Washington fact: The Supreme Court often influences how the average American lives as much or more than Congress or the White House.

The justices agreed to settle the dispute over the Affordable Care Act's contraception mandate -- whether the health of women covered is dispositive, as the Obama administration argues, or whether the owners of for-profit businesses may use religious objections to avoid providing contraception insurance.

The mandate is not in the language of the Affordable Care Act but in regulations issued by the U.S. Department of Health and Human Services implementing the act.

Not every organization is affected by the mandate.

Churches, their "integrated auxiliaries," and conventions or associations of houses of worship, are exempted from having to provide their employees with contraception coverage. Religious institutions not affiliated with a house of worship, such as hospitals, charities or schools, are not exempt, but under a compromise offered by the administration do not have to pay for contraceptive coverage. Rather, their insurers have to pay for the coverage.

Two challenges, from "closely held" companies in Oklahoma and Pennsylvania whose owners had religious objections to contraception, were consolidated for a single hour's argument, not yet scheduled. Both cases would seem to turn on the First Amendment's free exercise of religion clause, and the Religious Freedom Restoration Act of 1993

RFRA prohibits the federal government from placing substantial burdens on "a person's exercise of religion,'" unless government can demonstrate that applying the burden is the "least restrictive means of furthering ... [a]compelling governmental interest."

Normally the highly political Supreme Court would be expected to rule along its ideological fault line -- five conservatives besting the four liberals.

But in 2012 conservative Chief Justice John Roberts threw a curve, joining the four liberals to uphold the Affordable Care Act's mandate requiring people without insurance, but who can afford it, to acquire insurance. Roberts said the penalty for failing to sign up for insurance was allowed under Congress' power to collect taxes.

Roberts' vote in the 2012 case makes the outcome of the contraception mandate case less certain.

Also less certain is the outcome in a case that will decide whether communities across the United States may open government meetings with prayer -- almost always Christian prayer.

The justices heard argument in the case in early November. A decision is expected soon.

A town board in upstate New York, a suburb of Rochester, has opened its meetings for years with a Christian prayer led by a Christian cleric. But a federal appeals court ruled the prayers unconstitutional, finding they endorse Christianity.

A lawyer for the Town of Greece argued in the Supreme Court that the prayers are constitutional, citing the high court's 1983 ruling in Marsh vs. Chambers. The 6-3 Marsh ruling said prayers at the beginning of sessions at the Nebraska Legislature, or any state legislature, are constitutional.

A number of powerful figures are supporting the town's case, including Republican members of Congress and the Obama administration.

Eighteen states have filed a friend-of-the-court brief in support of the town's argument -- Indiana, joined by Alabama, Arizona, Arkansas, Colorado, Florida, Idaho, Kansas, Michigan, Mississippi, Montana, Nebraska, New Mexico, Oklahoma, South Carolina, Texas, Utah and Virginia.

The town board practice was challenged by two women who said anyone who wanted to participate in government meetings was subjected to Christian proselytizing.

"This case is not about the ability of legislators to acknowledge God or seek divine guidance," lawyers for the two women told the high court in a brief. "It is about the right of citizens to participate in local government without being required to participate in sectarian prayers."

During argument, Justice Anthony Kennedy, a key swing vote on the nine-member court, questioned whether judges or officials should decide what prayers are acceptable at government meetings, saying that would "involve the state very heavily in the censorship and the approval and non-approval of prayer."

Another case hanging fire in which a decision is expected soon is a challenge brought by the Republican National Committee and an Alabama man to federal "aggregate limits" -- the restrictions on the total amount of contributions that can be given directly during a particular two-year election cycle.

The conservative five-justice majority opened the floodgates to corporate political contributions for "independent electioneering" in 2010's Citizens United vs. FEC, practically drowning federal political campaigns in money.

Now the same five-justice majority that held sway in Citizens United may be poised to loosen restrictions on campaign finance even further.

The Federal Election Campaign Act sets up separate limits on the amounts individuals may contribute to federal candidates and other political committees, some indexed for inflation.

Currently, an individual may contribute as much as $2,500 per election to federal candidates, $30,800 per calendar year to a national party committee and $5,000 per calendar year to any non-party political committee, the Federal Election Commission explains.

Those "base" limits are not under challenge.

But FECA also sets an overall limit on the aggregate amount individuals may contribute in a two-year period. Last year, those limits restricted what an individual could contribute to no more than $46,200 to all federal candidates, and no more than $70,800 to federal political action committees and political party committees.

The RNC and McCutcheon seek to break through those barriers on direct contributions. They asked a three-judge U.S. District Court panel in Washington for an injunction against the continued implementation of the aggregate limits, saying they were unconstitutional or weren't justified by a narrowly tailored government interest.

The panel dismissed the RNC-McCutcheon suit, and the suit's contention that aggregate limits must be subjected to "strict" court scrutiny. The panel also rejected the cascade effect of Citizens United -- though the Supreme Court may yet vindicate that view.

The RNC and McCutcheon appealed the panel's ruling directly to the U.S. Supreme Court. During an October argument, Roberts again appeared to be the key to a majority, one way or the other.

In one of the first cases scheduled for argument in January, the justices are set to decide "whether the president's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions" in which no business is done.

Presidents since George Washington have made recess appointments when the Senate is not in session. At the heart of the current dispute is exactly when the Senate is in session.

As Democrats had done previously, Senate Republicans kept the Senate in pro forma session to avoid recess appointments. President Obama, fed up with delay, chose to challenge the practice in January 2012 when some Republican senators were holding pro-forma sessions while the Senate technically was on a 20-day recess.

When Obama moved ahead with three appointments to the National Labor Relations Board Republicans considered too labor-oriented, Noel Canning, a Pepsi bottling and distributing company in Washington state and a division of Noel Corp., took the board to court after it ruled against the company in a union dispute, challenging the board's legitimacy.

The case eventually landed in the U.S. Court of Appeals for the D.C. Circuit. A three-member appeals court panel ruled the NLRB's decision was invalid "as it did not have a quorum" because of the invalidity of the recess appointments.

The administration then successfully asked the Supreme Court for review, but eventually replaced the three controversial nominees.

Senate Minority Leader Mitch McConnell and the 44 other Republican senators have been granted the right to participate in the argument.

The outlook may be dim for the Obama administration position. The Heritage Foundation blog points out three federal appeals courts have ruled against the January 2012 appointments.

Though the Supreme Court's plate is already pretty full, a case on the horizon raises more intriguing questions for the justices.

On Dec. 16, a federal judge in Washington issued a preliminary injunction blocking the U.S. government's massive collection of phone records, which it conducts without a warrant, but stayed the injunction pending a government appeal.

U.S. District Judge Richard J. Leon, a George W. Bush appointee, said a suit by Larry Klayman, the founder of Freedom Watch, has "demonstrated a substantial likelihood of success" on the basis of Fourth Amendment.

The amendment bans unreasonable searches.

Though Leon granted Klayman's request for a preliminary injunction, he stayed his order pending an appeal by the Obama administration because of the "significant national security interests at stake in this case and the novelty of the constitutional issues."

The U.S. Justice Department immediately issued a statement saying the program is constitutional.

"We've seen the opinion and are studying it," department spokesman Andrew Ames said. "We believe the program is constitutional as previous judges have found. We have no further comment at this time."

The program's actions are approved by a special panel, the Foreign Intelligence Surveillance Court, made up of federal judges.

The challenge to the National Security Agency's surveillance program is one of a series of cases filed in federal court since the leaks this summer by former NSA contractor Edward Snowden, who has temporary political asylum in Russia.

The suit by Klayman and several other plaintiffs targets PRISM, a secret electronic surveillance data mining program operated by the National Security Agency since 2007.

Leon's ruling caused quite a stir in Washington, but it may have the life span of a fruit fly unless the U.S. Supreme Court ultimately wants to reverse 1979's Smith vs. Maryland. Leon blithely dismissed Smith as out of step with modern reality, but it's doubtful if appeals courts will see it that way.

In the Smith case, a Supreme Court majority said the installation of a "pen register" was not a search within the meaning of the Fourth Amendment, and did not require a warrant. A "pen register" collects the numbers called from a phone on an individual basis -- much like PRISM does on a mass basis.

The majority opinion by the late liberal Justice Harry Blackmun said the Fourth Amendment guarantee comes into play only when someone has a "legitimate expectation of privacy" that a government action has violated. People don't expect their phone numbers to be private -- they're giving that information to the phone company after all -- as opposed to the content of their conversations.

An NSA surveillance case already has reached and been rejected by the Supreme Court.

On Nov. 18, the justices rejected review in a challenge brought by Washington's Electronic Privacy Information Center. The challenge centered on the special judges' panel set up under the Foreign Intelligence Surveillance Act, or FISA, and its order to Verizon to produce data for the NSA.

Congress enacted FISA "to authorize and regulate certain governmental electronic surveillance of communications for foreign intelligence purposes," EPIC's petition said. "In the act, Congress authorized [FISA] judges ... to approve electronic surveillance for foreign intelligence purposes."

But the FISA court "compelled Verizon Business Network Services to produce to the National Security Agency, on an ongoing basis, all of the call detail records of Verizon customers."

EPIC wanted the Supreme Court to decide whether "the Foreign Intelligence Surveillance Court exceeded its narrow statutory authority to authorize foreign intelligence surveillance, under [the federal law] when it ordered Verizon to disclose records to the National Security Agency for all telephone communications wholly within the United States, including local telephone calls."

The Supreme Court refused to step in, without comment.

© 2013 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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