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June 26, 2014

Supreme Court Decision Day

Well, well. Some surprises out of the Supreme Court this morning.

First, in Noel Canning v. NLRB the Court in a majority opinion by Justice Breyer held that President Obama exceeded his authority when he claimed to recess appoint NLRB members while the Senate was holding pro forma sessions. The four justices in the conservative wing agreed with the result, but would have gone further and held that recess appointments can only be used to fill vacancies that arise during Senate intersession recesses. The decision is here (PDF).

This is a major rebuff to Obama's abuse of power. Not a single justice spoke up in favor of the administration's claim to be able to declare the Senate out of session. It is ironic that a former Senator's abuse of power has now led the Supreme Court to transform what was merely customary to a precedent decision that will curtail further presidents.

The second decision today was McCullen v. Coakley, the Massachusetts abortion clinic speech-free zone case. In another unanimous rejection (although with three justices concurring only in the judgment because they would have gon further), the Court held that the Massachusetts law was an unconstitutional violation of the First Amendment. That decision is here (PDF). I'll have more on it in a bit.

One take-away from today's surprise maj. op. from Justice Breyer is that Justice Alito is now the only justice not to write a majority opinion from the January sitting. That means it's a good bet he's writing the mandatory union fees case, Harris v. Quinn, which could sweep away union power to force nonmembers to pay for their activities. It is widely believed (but total speculation) that the Chief is writing Hobby Lobby.

The next decision day will be Monday at 10am. I'll have more on McCullen in a few minutes.

Update: Just some additional notes on McCullen, which I'll steal from my twitter feed.


A few folks asked if this decision has an impact on Westboro protestors. No, it does not. The maj. op. writes for folks like McCullen, who wish to talk with people on public sidewalks. The Chief specifically distinguished folks likeMcCullen from protestors.

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posted by Gabriel Malor at 10:43 AM

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