Constitution Daily

Smart conversation from the National Constitution Center

Looking ahead at a big week in the Supreme Court

January 10, 2014 by NCC Staff


One major case will be heard next week by the Supreme Court and a second big case could be announced, as the Justices ponder a potential landmark decision about television.

350px-Supreme_Court_US_2010The big case for Monday, at least in legal circles, is National Labor Relations Board v. Noel Canning.

The Noel Canning case is an important test of the President’s powers to make appointments while the Senate is technically in recess, as well as a test of the Supreme Court’s ability to interpret the rules of Congress.

Noel Canning is a bottling company in Washington state that got into a dispute with a local union about how to implement a pay raise for employees that both sides had accepted in a union contract.

The union asked the National Labor Relations Board to settle the dispute. But the Board didn’t have enough members to decide the case until President Barack Obama appointed three members during what the Obama administration considered a Senate recess on January 4, 2010.

But the Senate had started its annual session of January 2, 2010, and it took a three-week break, which its GOP leaders contend wasn’t an actual recess.

So can President Obama appoint someone to a recess appointment, during these intermittent breaks, without Senate approval? In the case of Noel Canning, the Justices will be considering three issues about the timing of the appointments and presidential powers.

The case also received an unexpected twist in November when Senate Democrats killed the filibuster as a way to block appointments to agencies like the National Labor Relations Board.

The Noel Canning case on Monday will featured a rare appearance of Senator Mitch McConnell arguing his case in front of the nine Justices.

The other big potential event on Monday might be an announcement from the Court that it will accept the case of American Broadcasting Companies, Inc. vs. Aereo, Inc.

The highly publicized case was under consideration on Friday in a closed-door session, and it involves a copyright battle with a tech TV startup and the major television networks that could affect the future of broadcast television.

Monday will mark the first time the Court will have a chance to announce that it will accept or reject the Aereo case.

Aereo is a company that provides a paid service used by people with computers, and it allows customers to watch broadcast TV programs on a computer that are also available for free over the airwaves.

The TV networks are deeply upset that Aereo can resell their broadcast TV signals without permission or compensation and fear the precedent will erode their revenue models, which depend on retransmission fees and contracts with sports organizations.

So in addition to ABC, the network lawyers at CBS, Fox, NBC and Univision are involved in the case, and the National Football League and Major League Baseball have filed petitions against Aereo.

If the Court says nothing about Aereo on Monday, there would still be more time for an announcement in coming weeks. But the case has made its way quickly to the Supreme Court, and both sides want the Justices to accept it for arguments.

In addition to the Noel Canning and Aereo cases, six cases will be argued in front of the Justices next week.

Another high-profile case among these is Executive Benefits Insurance Agency v. Arkison, and it involves a definition of the ruling in Stern v. Marshall (2011), which blocked the late Anna Nicole Smith’s heirs from collecting on a tortious interference claim.

The issue in the Arkison case is if bankruptcy courts can decide matters outside of their constitutional authority without violating Article III of the Constitution.

And a case due to be heard on Wednesday has also gotten a lot of attention: McCullen v. Coakley.

The McCullen case is about Massachusetts’s selective exclusion law, and how it applies to protesters at or near abortion clinics. The state’s law bars people, except clinic “employees or agents” from protesting within 35 feet of a facility.

The establishment of these buffer zones raises First Amendment and 14th Amendment issues tied to another Supreme Court decision, Hill v. Colorado (2000).

The Hill decision upheld a Colorado buffer zone law, but three current Justices (Antonin Scalia, Clarence Thomas and Anthony Kennedy) dissented. The Court now has what is considered a conservative majority.

Recent Constitution Daily Stories

Constitution Check: Are there no limits on Second Amendment rights?

Can the nation’s capital really be moved to Nebraska?

Aereo case heads to a behind-doors Supreme Court session

The Constitution in 2014: Election rules

Sign up for our email newsletter