Today, the U.S. Supreme Court rendered a decision on a subject that's not very sexy, but that will nevertheless have a huge impact on the American political process. In short, the Court appears to have sharply curtailed the authority of the President to make executive department appointments while Congress is not in session, in part by asserting that it is ultimately the responsibility of the Congress to say whether the Senate is in session (reread the last few words and, if you're familiar with the structure of our government, you'll notice something weird), and in part by indicating (although not with any real clarity) that a recess appointment may not be made during sufficiently short recesses.

But that's boring, right? More accessibly, yesterday, the Supreme Court held unanimously that police must have a search warrant before they can search arrestees' cell phones. Basically intuitive, probably, but a solid and important victory for due process.

Also, today, the Court held unanimously that a Massachusetts law establishing (essentially) protest-free zones around clinics that conduct abortions is unconstitutional. I think that's essentially consistent with the way we've treated First Amendment rights when it comes to presence in a sensitive location. Snyder v. Phelps is probably not directly on point here, but I'd say it's instructive on the Court's general approach to this kind of question.

A couple more decisions are coming, probably Monday. They include the highest-profile decision of the term: Whether Christian-run private businesses may exclude themselves from the general mandate of the Affordable Care Act that requires they provide coverage for contraception for their employees. Free Exercise cases are notoriously murky, especially because of legislative intrusion into the field. So that should be a lot of fun!

I'm sure, since this forum is full of people in technical fields, some of you have heard about the decisions in Aereo and Alice Corp. and have opinions about those cases. We can absolutely discuss those here as well. And really, despite the title of this thread, I think any SCOTUS decision at any point in the term should be in play for discussion. If you want to talk about Town of Greece or Schuette, by all means, please do.

It's not boring -- it's certainly a lot for my ever-slowing mind to take in. I'm glad you're posting this stuff, and I wish I had something remotely intelligent to say about it.

Disappointing. No guidance about the general patentability of software going forward. I'm guessing this case wouldn't have been unanimous if the defendant hadn't been Wall Street.

Oh, yeah, the reason I've linked to SCOTUSblog for most of the cases in question is that it's the best initial resource for both lawyers and laypersons looking to understand complex high court cases. If there are any cases you're particularly interested in knowing more about, there should be links to their excellent plain English summaries. Or just ask and I'll do my best to explain what's going on. High-profile federal court litigation isn't my profession, but it's one of my ongoing interests, so (hopefully) my input won't be completely useless.



Alice is honestly pretty baffling, and I get the impression it's not just because I'm not an IP lawyer. Reading a couple articles on it now; I'll probably have more to say tomorrow if I can carve out the time. FWIW, the country's de facto high court on IP matters is the Federal Circuit Court of Appeals, and it's not terribly unusual to see the Supreme Court simply adopt the Federal Circuit's decisions. (There's a similar dynamic in admiralty law with the Fifth Circuit, incidentally.) And in part because of this, my instinct is that it's usually better to get an unambitious ruling that offers virtually no guidance than some goddamned flailing thing with really broad implications.

The decision in Hobby Lobby is here, and closely held corporations cannot be required to provide contraception coverage for their employees. Reading now.

Also decided today was Harris v. Quinn, in which the Court held that partial public sector employees' unions cannot compel contributions, but declined to invalidate the unions themselves.

welp

[quote=Justice Alito]As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.[/quote]

It literally says that the rights of a group of people are more important than the rights of an individual.

Like, gee, haven't any of those ****wits looked up the definition of "oppression" before?? Holy ****.

AMERICANS ARE AT IT AGAIN.

JOB WELL DONE.

BURGERBOYS.

Okay, I am still reading the opinion and will have some actual thoughts soon, but in the meantime I just found out about this and ahahahahahaha oh god i just can't

First things first: SCOTUSblog's Plain English summary of the ruling.

Having read all 95 pages myself, I remain pretty firmly on the side of the dissenters. The majority's reasoning is honestly not awful in my opinion -- a lot of what makes this decision bad is that it's decided on the basis of a pretty bad law -- but there are some neatly disguised holes in the argument that I think Justice Ginsburg's dissent does a good job of pointing out.

Below in particular are the points I feel either were addressed insufficiently to support the holding, or were not addressed at all.

(1) Alito deals separately with the possibility that the for-profit motive of a corporation makes it impossible for that corporation to exercise religion in the sense required by the Religious Freedom and Restoration Act (RFRA), and the possibility that the corporate form does the same thing. He does not appear to consider the possibility that it's the combination of the two that does the trick. A for-profit sole proprietorship, obviously, is the same person and therefore of the same religion as its owner. A church organized as a corporation, obviously, has an obvious religious purchase, and however it organizes itself, all the people involved in its operations are almost certainly of the same religion. A for-profit corporation like Hobby Lobby, legally a distinct person from its owners, is not naturally of any religious affiliation. And as Justice Ginsburg points out in her dissent, it would be quite illegal for Hobby Lobby to reproduce the self-selecting membership of a religious nonprofit corporation by only hiring members of its owners' denomination.

(2) Is it really true that Hobby Lobby faces a "substantial burden" (a required element of prohibited government infringement under RFRA) if it is required to maintain an employee health plan that covers all FDA approved methods of birth control? Isn't the burden really just that some other person will use the comprehensive health plan provided by Hobby Lobby to claim coverage for emergency contraception? Is that really more of a burden than if some other person used the hourly wage provided by Hobby Lobby to purchase emergency contraception?

(3) What principle prevents a Jehovah's Witness-owned corporation from refusing to provide coverage for blood transfusions? A Muslim-owned corporation from refusing to provide coverage for certain vaccines derived in one manner or another from unclean animals? Alito seems content to rest on a lower court record showing no evidence that anyone has tried these things yet, which strikes me as showing a remarkable lack of imagination for a highly respected legal scholar.

(4) Can the Court's insistence that it's not in a position to evaluate the importance or centrality of any particular religious belief be squared with the Court's insistence that distinguishing sincere claims from insincere claims does not present an insurmountable difficulty? Like, at all?



Well, the majority asserts that the law doesn't require that kind of balancing of third party interests, and they've kind of got a point. The Court would be obligated to consider the interests of third parties if this were a First Amendment free exercise case, based on previous cases. But this is a RFRA case, and RFRA is (depending on who you ask, I guess) a terrible, ****ty law that does indeed at least appear to create a statutory free exercise right that's not subject to balancing of interests other than the religious person's and the government's.

So I guess what I'm saying is, irrespective of this decision, RFRA should probably be repealed.

Oh, and no, I really don't think I fully understand what Breyer and Kagan's joint concurrence is all about.

It's against my religion to pay more than the minimum wage.

Rich political elites make a chain of poor decisions which benefit established interests and economic rentiers at the expense of long-term stability and the public good, despite widespread confusion from other legal experts and the open disgust of almost every other human being. In other news, tomorrow will be a Tuesday.

If you weren't being facetious, and Alito was once actually considered a credible legal scholar, that probably should have stopped around the same time he was awarded a position you basically only get by having an extreme bias.

But IANAL. Maybe extreme bias is what passes for good legal scholarship.

You know, even as I was typing that, I wasn't sure how seriously I meant it. Alito's clearly the least impressive legal mind on the Court. Nevertheless, it's not so much that being extremely biased makes a judge a good legal scholar as that there are a bunch of good legal scholars out there and the most extremely biased ones make most of the short lists for high court appointment. (It is possible here to take a good joke too far, of course; see Robert Bork. (For the exact opposite, see David Souter.)) (Also, might as well admit it: Judges are selected for political preference at the Court of Appeals level, so if we're to strip Alito of the "legal scholar" designation on that basis, it ought to be much earlier than 2006.)

Yeah, we've had that one.

KEEP IT COMIN