Legal Challenges

Hot-button issues on Supreme Court docket

The Supreme Court is opening a new term that could see major decisions on prayer, campaign donations and contraception coverage under ObamaCare.

Monday will be the first day on the bench for the justices since June, when they issued historic rulings that expanded the rights of same-sex couples to marry.

The new docket is heavy on cases that would affect the political process.
{mosads}The court will have the opportunity to strike down some of President Obama’s recess appointments, eliminate more campaign-finance laws and determine whether state legislatures violate the First Amendment when they open with a prayer.
The president’s healthcare law could also find its way back to the high court, roughly two years after the landmark decision that upheld its individual mandate to have insurance.
The Justice Department has asked the Supreme Court to consider the birth control mandate. So have the owners of a cabinet-making company Conestoga, who say the policy requires them to violate their Mennonite faith.
Other pieces of Obama’s agenda will be at risk even if the court doesn’t take up the contraception case.
The most direct challenge comes from a suit that says Obama overstepped his authority to make recess appointments.
The president made three recess appointments to the National Labor Relations Board in early 2012. But those appointments were challenged because the Senate wasn’t technically in recess. Although senators weren’t working at the time, they were convening “pro forma” sessions every few days — a move specifically designed to thwart recess appointments.
“[The Senate] cannot, through the stratagem of seriatim pro-forma sessions, extinguish the President’s express constitutional authority to make recess appointments while simultaneously being unavailable itself to provide advice and consent,” the NLRB said in its brief to the Supreme Court.
A lower court disagreed, however. The Court of Appeals for the D.C. Circuit rejected the NLRB’s argument that the president can make recess appointments when the Senate isn’t active, irrespective of whether it is technically in recess.
“An interpretation of ‘the Recess’ that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction,” the court wrote. “This cannot be the law.”
Oral arguments have yet to be scheduled in the NLRB case.
The justices are diving in to their controversial cases early, with oral arguments Tuesday in a fresh challenge to campaign-finance laws. The case, McCutcheon vs. FEC, deals with the limit on how much one individual can donate to specific candidates in a single election cycle.
The Republican National Committee and a wealthy GOP donor say the aggregate limits are unconstitutional. If the court strikes down the limits, which many observers think is likely, individuals would still only be able to give a certain amount to any one candidate, but could donate to as many candidates as they want.
Next up for the court is Town of Greece v. Galloway — a challenge to public prayer. Court observers aren’t entirely sure why the Supreme Court agreed to hear the case, which challenges the town of Greece’s practice of asking local clergy to open town board meetings with a prayer.
Galloway is an exceedingly odd vehicle for the Court to accomplish any major doctrinal shifts or clarifications,” Jessie Hill, a law professor at Case Western Reserve University, wrote in a post about the case at SCOTUSBlog.
Greece, a suburb of Rochester, N.Y., had allowed local clergy to pray at town meetings since 1999. Most of the prayers were Christian, and critics say the town violated the First Amendment’s prohibition against government “respecting an establishment of religion.”
The 2nd Circuit Court of Appeals struck down Greece’s prayers as unconstitutional.
The Supreme Court upheld legislative prayer in a 1983 decision, and it hasn’t said much more on the subject since then. The fact that the court agreed to take the Galloway case made some legal observers question whether the court is interested in clarifying the situations in which public prayer is acceptable, but the specifics of the town’s practices could make that difficult.
“Whether the Galloway case will go out with a whimper or a bang, no one can say for sure at this point — maybe not even the Justices themselves,” Hill wrote.
The Justice Department has sided with the city in favor of allowing public prayer.
Oral arguments are scheduled for Nov. 6.


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