The court will rule on major cases before its session ends on June 30
During Al Jazeera America's regular Sunday evening show "The Week Ahead," Thomas Drayton discussed the cases with Garrett Epps, a Supreme Court reporter for The Atlantic, and Stan Pottinger, a former assistant US attorney in the civil rights division of the Justice Department.
In the case of National Labor Relations Board v. Noel Canning, the president's recess appointment power is under scrutiny, after more than a century of use. The case questions when Congress is officially out of session. Presidents have long appointed officials when Congress is out of session, but in recent years Senate leaders of both parties have refused to adjourn the Senate, holding pro forma sessions lasting only a few minutes to keep the president from appointing officials without Senate confirmation. Barack Obama, like George W. Bush before him, took the position that the Senate was not really meeting and appointed officials to vacant slots anyway.
According to Epps, during oral arguments the justices appeared to side with the legislature. "The justices seemed to feel this was flatly incompatible with the Constitution," said Epps. "The Senate said it was in session, but the administration said it was not."
"If the Senate changes hands in November and President Obama is facing a Republican Senate for his last two years, the recess appointment issue will be extremely hot," he added. "So it really is important to see how broad a ruling the court comes down with."
Then there's Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius. The two cases are being considered together. They challenge the Affordable Care Act's contraception coverage mandate, which leads to the question of whether for-profit companies should be afforded religious-freedom rights.
"It worries people across the spectrum," said Pottinger. "A number of people in the corporate world are worried about the idea that the Supreme Court might decide that a corporation may have a religious identity. This is going to be a real problem for competition in the marketplace."
Another key case deals with new technology. American Broadcasting Companies v. Aereo addresses Aereo's ability to allow users to stream broadcast television on smart gadgets using dime-size antennas. Television companies insist that Aereo must pay retransmission fees, just as cable companies do.
"The stakes in money and also the future course of technology are fairly high," said Epps.
"On the face of it, it seems like a theft, intercepting a signal and broadcasting the content," Pottinger said. But he said the other side of the argument is that people say they will be paying for antennas for their smartphones and iPads in the same way they would pay for television antennas.
Drayton wrapped up the discussion by asking which cases they would be watching closely. Epps said Harris v. Quinn seems to be making a lot of people nervous. It considers whether a state may compel personal care providers to accept and financially support private organization as exclusive representatives to petition the state for greater reimbursements from Medicaid programs. It is, in effect, a challenge to the existence of public sector labor unions.
Pottinger said he will follow Riley v. California, which concerns police searches of cellphones without a warrant during an arrest. It expands the area-of-reach rule that avoids the destruction of evidence and protects the safety of officers.
The Supreme Court may extend its term, but the expectation is that the cases will see decisions by the end of the month.