Supreme Court Will Consider Making Life Harder for Obama, Abortion-Seekers

The Supreme Court, the only nine people in America with job security (trade-off: they have to wear a uniform to work), returns to the job this week to tackle free speech, presidential appointments, and the role of the bankruptcy court, among other things. Here are the questions they're hoping to answer.

McCullen v. Coakley: Do buffer zones at abortion clinics violate protestors' free speech rights?

Anti-abortion activist Eleanor McCullen sued the state of Massachusetts because she would like to be able to confront women entering a Boston Planned Parenthood. Under a 2007 law, McCullen isn't allowed within 35 feet of the clinic's entrance — a law enacted, obviously, to prevent people like McCullen from being able to do what McCullen wants to do. But is this a violation of McCullen's First Amendment protections?

"McCullen said the law frustrated her attempts to talk to women entering the clinic," The New York Times reports. "She said she had just moments to try to make contact before she had to pull up short." The state's attorney general, Martha Coakley, is defending the measure: "This law is access balanced with speech balanced with public safety." As McCullen herself notes, the added distance hasn't prevented her from persuading women on the issue; she claims some 80 women have had their minds changed at that last minute.

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In 2000, Coakley notes, the Supreme Court upheld a similar law. "Nothing has changed except the court," she said. In a bad sign for defenders of the law, the traditional swing vote between the court's liberals and conservatives, Justice Anthony Kennedy, dissented on that 2000 decision. The court hears arguments on the case on Wednesday.

NLRB v. Noel Canning: When is the president allowed to fill vacancies without Senate approval?

In January 2012, President Obama took advantage of Congress being out of town to appoint several members of the National Labor Relations Board. Under the Constitution, the president is allowed to make appointments when Congress is in recess; after all, how can he get their advice and consent if they're not in Washington? The problem, though, is that Congress wasn't technically in recess. House Republicans showed up every few days to gavel session in and out specifically to prevent Obama from appointing people without permission. In January of 2013, a federal court invalidated Obama's appointments.

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Noel Canning is a soda bottler that had been ruled against by the NLRB during the time that the recess appointments were on the board. If their tenure was invalid from the beginning, it means that the board's decision against Noel is also invalid.

But the broader question is how and when any recess appointments that occur within a Congress' two-year session are valid. After Obama's 2012 move, Republicans blasted the president for abusing the Constitution. The president has argued, in effect, that Congress was as much in recess when he made his NLRB appointments as it has been when other presidents have made appointments. Which a majority of the D.C. Circuit Court agreed with, to Obama's dismay, arguing that all appointments that occur in similar not-technically-a-recess gaps should be invalid. If those appointments are tossed, it could mean 342 appointees are suddenly invalid.

For Obama's opponents, the debate offers an opportunity to hammer on a theme: The president tries to work around the checks and balances provided within the Constitution. For Obama, the argument is different: This is what I've been forced to do by relentless opposition. This is why the Constitution has a third branch to resolve disputes.

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Executive Benefits Insurance Agency v. Arkison: Should Anna Nicole Smith's legacy be a change in the power balance in the courts?

(Yes, we were just trying to work Anna Nicole Smith's name into that.)

When Anna Nicole Smith's wealthy, elderly husband J. Howard Marshall died in 1995, it set off (not atypical) wrangling over who would inherit his estate. An offshoot of that dispute eventually made its way to bankruptcy court, resulting in the case of Stern v. Marshall. Smith's lawyer, ex-husband, and estate executor Howard Stern sued Elaine Marshall, executrix of the estate of one of J. Howard's sons. (It's complicated.)

The Stern case, which also went to the Supreme Court, resulted in new allowances by the Court for when bankruptcy courts could take cases. The dispute between Executive Benefits Insurance Agency and a trustee of a preceding company's bankruptcy leveraged that case to argue that the bankruptcy court acted outside of its constitutional authority.

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ABA Journal explains the ramifications of the Court's decision — the case "focuses on whether bankruptcy judges can decide a matter outside of their authority with consent of the parties," Erwin Chemerinsky writes. "If the court holds that they cannot do so, it will affect not only bankruptcy court litigation, but the power of magistrate judges and even arbiters."

American Broadcasting Companies Inc v. Aereo Inc: Should a company be able to pick up TV broadcasts and send them to your iPad?

(This case won't be heard this week but, over the weekend, the Court announced that it would be considered in the future.)

The four major TV networks are suing Aereo for reusing their content without permission. Aereo is a system that, simply enough, picks up over-the-air TV signals and streams them to your iPad. Normally, an intermediary system like that would need to pay retransmission feeds. But since Aereo is simply picking up broadcasts that are already available, it argues that it shouldn't have to. A lower court already ruled that Aereo wasn't infringing on the networks' rights, but the company wanted final approval from the Supreme Court.

At Time, Sam Gustin explains the implications.

Justice Alito recused himself from the case, but it's not clear why.

This article was originally published at http://www.thewire.com/politics/2014/01/supreme-court-will-consider-making-life-harder-obama-abortion-seekers/356950/

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