It’s June, which means over the next few weeks we’ll be getting the usual flurry of decisions released by the Supreme Court on cases they heard earlier in the term. Often these are the most contentious and controversial cases and this year is no exception. ThinkProgress highlights a few of the cases in which rulings are anticipated:
Cell Phone Searches
As a general rule, the police must obtain a warrant before they can search a person’s possessions. One long-standing exception to this rule, however, is that police may make a warrantless “search incident to arrest” — that is, when a person is lawfully arrested, the police may search the person being arrested and anything they find on the person.
When this rule was developed, however, cell phones did not exist and modern-day smartphones were not even imaginable. For this reason, the justices who created this rule had no conception of a world where police could arrest someone for a minor crime — potentially something as minor as jaywalking — and then go on a fishing expedition through a person’s entire email inbox, the text messages they sent to their friends and their romantic partners, and any apps they may have downloaded onto their phone to help them manage their finances. One case currently pending before the justices, Riley v. California tees up the question of if and when the police may search the information contained on a suspect’s smartphone without obtaining a warrant. A companion case, United States v. Wurie presents the related issue of whether police may search an ordinary cell-phone’s call log without a warrant.
I’m very interested in the outcome here. It could be a traditional 5-4 ruling, with the conservatives on one side and the liberals on the other, but Justice Scalia has a pretty good track record on 4th Amendment cases so he could surprise and switch sides. And then there’s the big one:
Finally, the most watched case this term is likely to be the Hobby Lobby litigation, which raises the issue of whether religious employers can refuse to comply with a federal rule requiring their health plans to cover birth control. If the oral argument is any indication, supporters of this rule should not be optimistic. Justice Anthony Kennedy, the only member of the five justice conservative bloc who expressed sympathy for the government’s arguments, later accused Solicitor General Don Verrilli of making an argument that could enable Congress to require corporations to pay for abortions. Given that Kennedy, with one exception, has a virtually unblemished anti-abortion record since joining the Supreme Court, this is an ominous sign for the rule at issue in this case.Nevertheless, the question of how the government loses this case is almost as important as if it loses. Clement, who argued this case on behalf of the religious employers, called for a truly sweeping rule — laws burdening a corporation’s purported religious faith must survive the “most demanding test known to constitutional law.” At times, plaintiffs invoking “religious liberty” have claimed exemptions from a wide range of laws, including laws banning race discrimination, bans on gender discrimination, the minimum wage, Social Security and most recently, laws protecting LGBT Americans. Though these aggressive kinds of religious liberty claims have historically not received a sympathetic ear from federal judges, Clement’s broad rule could give at least some of them a second life.
It’s not at all clear that the Court will give Clement what he asked for, however. Though Kennedy seemed inclined to rule in Hobby Lobby‘s favor, he also worried about what would happen to the rights of employees who might be hurt by their boss’ decision not to follow the law. This suggests that Justice Kennedy may hand a victory to Hobby Lobby without endorsing the sweeping legal immunity for businesses that object to the law on religious grounds that Clement called for in his brief. Nevertheless, however the Court decides, the issue of whether anti-gay business owners can invoke “religious liberty” to discriminate against LGBT Americans is not going away. Indeed, it’s likely that a raft of bills seeking to expand religious conservatives’ ability to ignore the law will follow the Court’s decision in Hobby Lobby, regardless of what the justices decide.
This is the most eagerly anticipated ruling of all. I don’t expect it to be released until June 30th, the last day of the current term. And regardless of the outcome, it will cause major controversy.