SCOTUS: Emory Law faculty analysis of the 2014 term
By Emory University School of Law | Emory Law | July 22, 2014
Burwell v. Hobby Lobby Stores
The Supreme Court has spoken again on the place of religion: the court decided (5-4) that closely held private corporations as well as individuals are not bound by the administrative rules of the Department of Health and Human Services (HHS) that mandate contraception be provided as part of employer insurance plans. Furthermore, the court did not mandate this result on any constitutional grounds, but instead cited the Religious Freedoms Restoration Act and its progeny. In essence, the court held that the administrative regulations proposed by HHS violated a prior act of Congress. Although the court does not say so directly, one has the impression that Congress could overturn this decision by legislative action, should it wish to do so.
This decision is yet another in a long line of religion cases that has left our law and jurisprudence somewhat confused. Here is a brief review that might help us understand. The First Amendment to the Constitution tells us simply, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This has been understood for decades as protecting two somewhat competing values: the right of every person to worship as they see fit and the duty of the government not to privilege one faith over another. Although there was a time when this was understood as limited to the federal government, for decades now the First Amendment has applied to all the branches of government: federal, state and local.
Over the decades, based on these principles, the Supreme Court has ruled that government cannot establish religious rituals as part of our government conduct unless they are open to all faiths, allow displays on government properties that are particular to one faith, or otherwise allow one faith to either be, or even appear to be, the established church. Furthermore, starting in the 1970s, the Supreme Court prohibited excessive entanglement of government and religion. The famous case Lemon v. Kurtzman created greater separation between church and state. But, in 1990, in Employment Division v. Smith, the highest court held that the government need not exempt people acting based on their religious beliefs from generally applicable laws, so long as the law was passed without any anti-religious animus. The court made this clear in a follow-up case, Church of Lukumi Babalu Aye v. City of Hialeah. So even if your religion mandated ingesting peyote, it was still a crime and could not be done.
Congress responded to Smith by passing the Religious Freedom Restoration Act (RFRA) in 1993. This act mitigated Smith by directing that even when laws are neutral to religion, if they are a substantial burden, they shall only apply when both (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. The Supreme Court struck down parts of RFRA in City of Boerne v. Flores, and the act was repassed in modified form by Congress under the name Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), which repeated the basic test of RFRA in a smaller subset of cases – but still binding on administrative regulations of the federal government.
Furthermore, the court made it clear in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission that some generally applicable laws that prohibit (for example) discrimination cannot be applicable to churches themselves, as the government has no authority to regulate core religious functions of those who are ministers (or priests or rabbis or imams) or why they are hired or fired. Religious Corporations could not be tightly regulated by the government and could not be compelled to provide birth control if their faith opposed such.
Hobby Lobby’s majority opinion focused on a very narrow problem: the Affordable Care Act put forward Department of Health and Human Services administrative regulations that mandated the distribution of some forms of birth control that some privately held corporations found offensive to their religious values. Do this HHS regulations trump the rights of these for profit companies under RFRA or RLUIPA? Or maybe as HHS claims, for profit corporations are not covered by RFRA or RLUIPA? (The lower court had already indicated that religious corporations such as churches were exempt from these provisions, and the administration proposed a work around which might or might not be constitutional: but that is for another case.)
In Hobby Lobby, by a vote of 5 to 4, the Supreme Court ruled that HHS regulations must comply with RFRA or RLUIPA and that both statutes apply not only to individuals but to for-profit corporations. The court then found that these regulations were not the least restrictive means of furthering that compelling governmental interest and then struck the administrative regulations down as being in conflict with an act of Congress.
Town of Greece v. Galloway
The Supreme Court’s decision to uphold the practice of legislative prayer at town board meetings ignores obvious, better options and creatively dispenses with the facts of the case.
With Town of Greece v. Galloway, the court had an opportunity to right the wrong of Marsh v. Chambers, the original legislative prayer case, which the court admits failed to subject the practice to any formal test at all. Instead of correcting a long-standing error, the court just dug in deeper.
The court claims obtuseness in its search for a clear-cut rule that would satisfy the First Amendment while still being faithful to a history that favors some sort of solemn procedure in public settings.
Within these waters the court finds so murky, I count four better solutions.
- Option 1: Do not have any prayer, and find another way to observe a solemn moment. This is an excellent bright line rule, easy to follow and easy to implement. Yet the court rejects this possibility because … well, we’ve always had prayers. Times change, laws change and the offensive nature of prayers change, but the court is not willing to budge. The assumption that some kind of prayer is essential to the proper functioning of government violates the First Amendment. But assuming that’s the case, we still have …
- Option 2: Have a silent prayer. Let people say or not say whatever they want to whatever deity or non-deity they choose. No, says the court. Which brings us to ...
- Option 3: Allow verbal, generic, nonsectarian prayer, a precedent already established in County of Allegheny. That case did its best to clean up Marsh v. Chambers, which in 1983 held that government funding for chaplains was constitutional. Congress gives its chaplain guidelines for prayers, yet the court believes this would be too much entanglement for town board meetings.
- Option 4: Allow sectarian prayers, even those that ask Jesus Christ our Lord and Savior to grant the governing body wisdom. Just require the government body to invite ministers of all faiths, so that the practice does not end up giving one or more faiths a dominant voice. No, says the court. A town does not have to work so hard to achieve a minimum level of religious diversity.
And so we arrive at the court’s decision to ignore the complaint that the prayers in question were “offensive, intolerable and an affront to a diverse community.” The court rules that government sectarian prayer at town meetings is constitutional, even when those prayers almost always reflect one religion. The First Amendment was designed to protect the members of minority faiths from majoritarian rule. Yet in a neo-Federalist move, the court declares that mostly Christian towns can have mostly Christian prayers. Objectors can deal with it or move.
The decision claims the case would be different if “many present” considered the prayer to fail in its purpose of uniting lawmakers in their common effort. Apparently, two complainants are not enough.
The court agrees that if the board had asked the audience to join in, such an invitation might have constituted illegitimate coercion. Here, however, the court is quick to point out that the board did not solicit the crowd’s participation directly. Its designated chaplains did, and that’s just fine.
There is no evidence, the court asserts, that respondents might feel pressure to join in. Yet at least twice dissenters were publicly singled out and even called names.
Having picked an indefensible position, the court fails to defend it. In a desperate desire to uphold a problematic practice, the justices seem unwilling to even deal with the facts on the ground.
There are no winners here. If the court wished to honor the significance of prayer, it would not demean it by forcing it on others.
The U. S. Supreme Court v. the Trolls
A casual observer could have viewed the October 2013 term as the intellectual property term of the Supreme Court. Ten of the court’s 72 cases involved patent, copyright or trademark law. And six of them were patent cases. The six patent cases, the most in the Supreme Court’s history to my knowledge, are particularly surprising given the existence of the U.S. Court of Appeals for the Federal Circuit, which hears all patent appeals from across the country. Moreover, the Supreme Court rejected the Federal Circuit’s legal rules in all six of them (though they ultimately agreed with the Federal Circuit’s judgment in one). Indeed, since 2000, the Supreme Court has taken 30 patent cases, in contrast to about 10 each of patent and copyright. And the court has already agreed to hear one patent and two trademark cases next term.
What is going on here? Some of it may be that intellectual property is an important part of the modern economy. Yet, at least this term, the cases mostly could be viewed as anti-patent, reducing the value of patents. There is also the possibility that the Supreme Court is suspicious of the Federal Circuit as an institution, fearing that the “expert court” may have developed pro-patent biases or a penchant for bright-line rules that run afoul of the Supreme Court’s more nuanced, contextual approach.
For this term, though, the Supreme Court may be aware of the ongoing debate about the patent system. In particular, the phenomenon of patent assertion entities (PAEs), pejoratively referred to as patent trolls, may have driven some of the court’s interest. Five of the six cases directly bear on PAEs, and the court’s decisions all offer stronger tools for combating them.
For example, one problem with PAEs is that they face virtually no litigation expenses. Their attorneys often work on a contingency fee basis. Moreover, their only asset is the patent, so they have virtually no discovery costs. In contrast, practicing entities often have voluminous materials to review for discovery and face possible infringement damages. The cost asymmetry often leads many defendants to settle. One way of leveling the playing field, though, would be to shift fees—to make the PAE pay the attorney fees of the accused infringer if the PAE loses. Section 285 of the Patent Act allows fee shifting to the prevailing party when a case is “exceptional.” Under the Federal Circuit’s rule, absent inappropriate conduct, a case was only exceptional when the litigation was brought in subjective bad faith and when the case was objectively baseless, a difficult standard for victorious defendants to prove. But, in Octane Fitness, LLC v. Icon Health & Fitness, Inc., the Supreme Court rejected this test, describing it as “so demanding that it would appear to render § 285 superfluous.” In its place, the court offered an easier, more flexible test, defining an “exceptional case” as “simply one that stands out from others with respect to the substantive strength of a party's litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated. District courts may determine whether a case is “exceptional” in the case-by-case exercise of their discretion, considering the totality of the circumstances.” In the companion case of Highmark Inc. v. AllCare Health Management System, Inc., the court also reined in the Federal Circuit’s ability to alter a lower court’s determination that the case is exceptional. Instead of having plenary review, the Federal Circuit can only change the district court’s determination if the court abused its discretion, the most deferential form of appellate review. With these two cases, the Supreme Court made it far easier to force PAEs to have to pay the defendant’s attorney fees, raising their stakes in the litigation.
Another critique of PAEs is that the patents they assert are often rather vague as to what they cover. When someone is accused of infringing the patent, they may not be able to discern readily if they infringe, leading them likely to settle once faced with potential liability and litigation expenses. In Nautilus, Inc. v. Biosig Instruments, Inc., the Supreme Court made it easier for defendants to prove a patent claim is indefinite. The Federal Circuit’s rule was that a patent claim is indefinite only when it is “insolubly ambiguous,” which is rare. The Supreme Court made it easier to knock out these bad claims by articulating the following test: a patent claim is indefinite when “viewed in light of the specification and prosecution history,” it fails to “inform those skilled in the art about the scope of the invention with reasonable certainty.” Parties defending themselves from PAE assertions now have a more robust tool to knock those patents out.
A fourth case, Limelight Networks, Inc. v. Akamai Technologies, Inc., does not offer the same robust tools as the previous three cases, but it does impede the ability of PAEs to enforce patents involving online technologies, an area where PAEs tend to operate. This narrow decision rejected the Federal Circuit’s interpretation of “inducing infringement” in a way that allowed patent owners to capture acts by distinct entities, such as when an online user interacts with another party’s server. The Supreme Court’s rule thus eliminates this strategy for PAEs to enforce their patents against certain users.
The final, and perhaps most significant case, was Alice Corporation v. CLS Bank, in which the court found a process for mitigating settlement risks in the financial industry as being merely an abstract idea and thus not eligible for patent protection. The court made clear that merely taking an idea and putting it onto a computer is not enough to transform the invention into something patentable. Because many PAEs own patents in the software and business method area, this case could wipe out many of their patents (as well as the patents of many non-PAEs). Unfortunately, the Supreme Court’s rule did not provide much guidance as to when software and business method inventions would be viewed as sufficiently non-abstract to qualify.
Even if the Supreme Court did not intend its October 2013 term to be the Term of the Patent Troll, the outcomes of these cases show that it actually was. Whether these changes level the playing field sufficiently to offset some of the downsides of the PAE phenomenon remain to be seen.
McCutcheon v. Federal Election Commission
Shaun McCutcheon contributed almost half a million dollars in campaign finance money over the last three years but wanted to contribute still more. In the 2011–2012 election cycle alone, he contributed to 16 federal candidates, all three national Republican Party committees, and several other political action committees (PACs). Nonetheless, he wanted to contribute money to at least a dozen more candidates and even more to the Republican Party committees. The problem for McCutcheon is that the additional $100,000 that he wished to donate would have exceeded the federal aggregate contribution limit that capped the total amount an individual could contribute during that federal election cycle at $117,000. In a case popularly billed as the next Citizens United. McCutcheon challenged this aggregate limit under the First Amendment, and if successful, he and other wealthy individuals will be free to donate almost $4 million in campaign finance contributions each election cycle.
The irony in McCutcheon v. FEC is that the Supreme Court is likely to strike down all or a substantial part of the aggregate limit without considering a government interest that provides the strongest plausible case for the limit’s purpose. Ostensibly, all the litigants seem to agree that the government purpose for the aggregate limit is anti-circumvention of the base contribution limits. That is, the aggregate limit prevents an individual from circumventing the base limit on contributions to a particular candidate by barring the individual from donating large sums to other candidates or political committees who could then funnel those sums back to the original candidate. By capping the total amount an individual can contribute, the aggregate limit indirectly restricts the use of third-party conduits to fund a candidate beyond the base contribution limit. However, this rickety rationale does not capture the larger intuitive appeal of the aggregate limit, nor its most salient anti-corruption purpose.
The bedrock of campaign finance regulation’s constitutionality is the government’s interest in the prevention of actual and apparent quid pro quo corruption. Traditionally, corruption has been understood as arising between a contributor and a candidate, with only a candidate positioned to offer quids in exchange for money by virtue of the candidate’s access to public office. But that myopic understanding of quid pro quo corruption as limited to individual candidates, each isolated from one another, makes little sense given the pervasiveness of political parties in national politics and campaign finance. The major parties today cannot be understood as separate from candidates and officeholders, but are constituted at their core by an alliance of candidates and officeholders who coordinate policymaking and campaign finance. The aggregate limit thus plausibly addresses the risk of quid pro quo corruption, not between the traditional dyad of high-level contributors and candidates, but between those contributors and political parties.
Environmental Protection Agency v. EME Homer City Generation
In a part of the opinion that hasn't garnered much attention, the Supreme Court's April decision in Environmental Protection Agency v. EME Homer City Generation sheds light on a design flaw in the statute that most prominently features cooperative federalism-the Clean Air Act.
One Year Later: United States v. Windsor
The U. S. Supreme Court will likely issue a ruling next year requiring all states to allow same-sex couples to marry, Michael Perry predicts, citing a ruling by the U. S. Court of Appeals for the 10th Circuit striking down Utah's ban on same-sex marriage.
National Labor Relations Board v. Noel Canning
The Recess Appointments Clause is an exception to the normal constitutional requirement that the Senate confirm presidential officers. It allows the president “to fill up all Vacancies that may happen during the Recess of the Senate.” President Obama announced three NLRB appointments Jan. 4, 2012, when the Senate was operating every Tuesday and Friday until Jan. 20 under a resolution calling for pro forma sessions with “no business transacted.”
Did the three vacancies (1) “happen during” (2) “the recess”? A unanimous Supreme Court held that the president’s appointments were unconstitutional, but split 5-4 on the rationale. That split was deep, as we shall see in a moment. The two camps of justices used different methodologies and divided over the decision’s ramifications for the executive/legislative power balance. The court did not examine what Noel Canning would do to Labor Board decisions that lacked a quorum.
The majority (Breyer plus Kennedy, Ginsburg, Kagan and Sotomayor) held that vacancies occurring before a recess should be construed to “happen during” the recess. Justice Breyer noted: “the most natural meaning of “happens” as applied to a “vacancy” (at least to the modern ear) is that the vacancy “happens” when it first occurs.” But he concluded that purpose (augmenting presidential power) and historical practice (recess appointments for at least 75 years) trumped the natural meaning of “happen during.” Presidents thus may make recess appointments to fill vacancies that begin before the recess.
The more complex argument was over what “the recess” means. Justice Breyer said: “the recess” might suggest that the phrase refers to the single break separating formal sessions of Congress [as] “the” frequently (but not always) indicates “a particular thing.”
But he concluded that “the” means not only the inter-session recess every two years but also numerous shorter intra-session recesses. Purpose (“continued functioning” of the government absent the Senate), history (“thousands” of post-WWII intra-session appointments without formal Senate objection) and Senate practices (longer sessions, more short intra-session breaks) convinced the court that “the Recess” means any substantial break in Senate sessions. However, these appointments were unlawful, said the majority, because they were made when the Senate, under its own resolution, held sessions every three days that could have been used to conduct business. The court also opined that adjournments for four to 10 days were “presumptively” too short for recess appointments absent “unusual circumstances” like a “national catastrophe.”
Concurring only in the result, Justice Scalia (with Chief Justice Roberts and Justices Thomas and Alito) chastised the majority for ignoring the Constitution’s text, manufacturing history (“roughly 90 percent of all the intra-session recess appointments in our history have been made since 1945”), and creating an unclear rule that encourages presidents to circumvent the Senate. Justice Scalia decried “expansion of executive power at the expense of Congress” with great “damage done to our separation of powers jurisprudence generally.”
What does the decision mean? Specifically, Noel Canning overturns hundreds of NLRB cases decided between Jan. 4, 2012, and confirmation of three new nominees many months later. Some of these cases are now moot, others might be affirmed promptly, and a few might be reheard or even reversed. Noel Canning may also throw into doubt decisions by NLRB Regional Directors in Los Angeles, Tampa, Philadelphia, and Boston who were appointed by the unconstitutional Board.
More generally, does the decision (1) upset the balance between presidential appointment power and Senate confirmation power and (2) damage the court’s entire separation-of-powers jurisprudence? I doubt the appointment power has been seriously altered. The Senate can control its own recesses; if enough senators object to recess appointments on policy grounds, the Senate can block the president from circumventing its role in the appointments process. What the Senate loses is an automatic win over the president; it has to assert its confirmation prerogative.
As for the court’s separation-of-powers jurisprudence, that jurisprudence was far from clear before Noel Canning. Constitutional Law students read cases that use formal methodology (what Scalia advocated here) and functionalism (what the majority used here). The long-term results are unclear as Noel Canning enters the constellation of cases framing future battles between presidents and Congresses mediated by the Supreme Court.