The Supreme Court and the Dragon

Like Smaug from The Hobbit, the Roberts Court is remote, protective, and prone to sudden displays of fierceness.
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Those who celebrated the holiday at the cinema undoubtedly noticed the eerie resemblance between the United States Supreme Court on one hand and Smaug the Magnificent on the other. True, Benedict Cumberbatch (voice of the dragon in The Hobbit: The Desolation of Smaug) can’t match the vocal hauteur of Chief Justice John G. Roberts spouting flame at the solicitor general, but consider the other similarities. Both live in magnificent, inaccessible palaces. Both can seem somnolent, given only to faint sleepy rumblings and snorts, but can rise without warning to rain fire on the villages below. 

The Court finished 2013 quiescent but grumbling: Consider that the most electrifying moment of the December sitting was Justice Clarence Thomas’s bench opinion in a unanimous decision about the Employee Retirement Income Security Act.  

January, however, will have flames aplenty. This Court majority is increasingly scornful of precedent, even recent precedent, and seemingly impatient to push the law rightward.  We may, in fact, see a first sign of this next month—some Court observers believe the time is ripe for the opinion in McCutcheon v. Federal Elections Commissionthe attack on federal contribution limits.  

Monday, January 13, will be the most watched “pure” constitutional case of the term, National Labor Relations Board v. Noel Canning.  Article II § 2 cl. 3 provides that the president “shall have the power to fill up all vacancies that may happen during the recess of the Senate” by making temporary appointments that will last until the end of the next congressional session.  During the Bush and Obama years, first Democratic and later Republican senators held farcical one-senator “pro forma” sessions (a single bored senator from a nearby state “convening” an empty chamber for 15 minutes or so) to prevent the president from using this power. When Republican filibusters stripped the National Labor Relations Board of any approved members, the Obama administration declared that “pro forma” sessions actually are “the recess of the Senate, and named temporary members to the board.

It was no surprise when the District of Columbia Circuit voided those appointments. But that court, using the most questionable “originalism” I’ve ever seen in a judicial opinion, went beyond the facts to gut the recess  power almost completely. The majority looked up the word “the” in an old English dictionary and proclaimed that there’s only one “recess,” and that both the appointment and the vacancy itself must occur during that “recess.” In recent years, that break between one Congress and the next has dwindled to a few minutes or seconds every two years; the opinion essentially guts the recess power.

In case anyone missed the huge partisan overtones of the case, the Court has granted argument time to lawyers for Senate Minority Leader Mitch McConnell.  The immediate effect of any decision is hard to gauge—with the filibuster reforms enacted in November, the Obama administration can now get a timely vote on most of its nominees. But if the Senate changes hands in November, a hostile majority could block the president from making any appointments at all, and the recess power will seem pretty important.  

Obama's tactic of calling pro forma sessions "recesses" will lose (as it deserves to); the interesting question is whether the conservatives will cut back executive power in ways that will affect future presidents.

Two days later, the Court moves on to abortion. McCullen v. Coakley doesn’t directly impact the right to choose. But it offers a chance to roll back abortion-related precedent—the 2000 case of Hill v. ColoradoHill provided constitutional support for state and federal laws creating buffers around reproductive-health facilities so that staff and patients do not have to fight their way through angry anti-abortion protesters. These “buffer” laws raise serious concerns under the First Amendment. In Hill, the Court’s majority upheld a Colorado law that forbade anyone to approach within 10 feet of an entering patient in order to protest or persuade the patient. The Court reasoned that the buffer protected not just a patient’s feelings but —since angry confrontations might raise a woman’s blood pressure or even bring on premature labor in some cases—her physical health.  

Massachusetts in 2007 enacted a law creating a 35-foot “buffer” around clinic entrances. Only patients and clinic staff may enter that zone. That’s broader than the law in Hill—broad enough that the American Civil Liberties Union, staunch supporters of abortion rights, has filed an amicus brief suggesting that the statute may be unconstitutional “as applied” in specific circumstances.  

This Court has found First Amendment protection for animal “crush” videos, violent video games, and anti-gay protests at military funerals. The physical health rationale in Hill may carry little weight—in Carhart v. Gonzales, the Court’s current majority, for the first time, approved an abortion restriction without a health exception. The question is whether the Court will accept the challengers’ invitation to overturn Hill altogether.  

Finally, on Tuesday, January 21, we will get a hint of whether the Court wants to escalate its vendetta against public-employee unions. Under current law, public employee unions may be recognized as the representatives of a group of employees, but no individual is required to join the union. The union must represent all the workers; those who don’t join must pay an “agency fee” to reimburse the union for the cost of negotiating contracts and representing workers. There’s been a lot of litigation over the years to determine what expenses can be passed on to non-members and what cannot—since the First Amendment protects them from unwilling use of their money, for example, to support political candidates.

In the 2012 case of Knox v. Service Employees Union, the Court applied the First Amendment to strike down part of a public-employee union contract. Knox invalidated a special assessment by the union passed to fund political activities. But Justice Samuel Alito wrote an opinion for five justices that went a good deal further. The whole agency-fee setup, and the precedents that approve it, Alito wrote, may need to go. “The compulsory fees constitute a form of compelled speech and association that imposes a ‘significant impingement on First Amendment rights,’” he wrote. “Our cases to date have tolerated this ‘impingement,’ and we do not revisit today whether the Court’s former cases have given adequate recognition to the critical First Amendment rights at stake.” 

That dictum seemed to some observers like a warning to the unions. Harris v. Quinn will signal how much trouble they are in. The case concerns a group of state-paid “personal assistants” who provide rehabilitation services in their own homes. The assistants voted to designate SEIU as their bargaining representative. The union, as usual, negotiated a contract with an agency fee agreement to reimburse the union for representing employees who did not wish to join.

Knox concerned political expenditures by the union; the anti-union activists arguing Harris v. Quinn now argue that non-political agency dues, and even exclusive-recognition contracts, are unconstitutional—in effect, that the First Amendment forbids public employee unions. 

In the villages at the foot of Smaug’s mountain, the new year has begun with an air of anxiety. Government lawyers, abortion activists, campaign finance reformers, and labor unions are watching the sky. Smaug is stirring.    

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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