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Wednesday, June 3, 2015

5 Huge Supreme Court Decisions this Month

Marriage rights, property rights, free speech, and more

The Supreme Court is entering the final stretch of its 2014-15 term, and there are momentous decisions on the way.

This June, the Court will hand down decisions in a number of high-profile cases involving hotly contested statutory and constitutional questions, touching upon everything from the Affordable Care Act to same-sex marriage to what Justice Kagan has called the “world’s most outdated law” – a New-Deal-era scheme that authorizes the federal government to prop up the price of raisins by confiscating them from farmers.

While reasonable minds can differ concerning the proper outcomes in particular cases, each of them involves a plausible abuse of government power requiring judicial engagement – a genuine, impartial, evidence-based search for the truth – rather than knee-jerk deference to the executive or legislative branches.

Here are five cases especially worth watching.

1. King v. Burwell

Does the law mean what it says, or whatever government officials want it to mean?

That is the fundamental question confronting the Supreme Court in King, the latest challenge to the Affordable Care Act. King concerns the IRS’s interpretation of a section of the ACA concerning tax credits for buying health insurance from government-operated insurance exchanges.

Congress wanted states to set up their own exchanges, but it lacks constitutional authority to force them. So, as an incentive, Congress authorized tax credits for insurance policies purchased “through an Exchange established by the State.” The ACA expressly provides that “‘State’ means each of the 50 States and the District of Columbia.”

As a backup, the ACA directed federal bureaucrats to set up federally operated exchanges in states that declined to set up their own.

The question before the court is whether it was legal for the IRS to provide subsidies for policies purchased on federal exchanges, despite the lack of explicit statutory authorization.

2. Horne v. Department of Agriculture

The Fifth Amendment requires that the government pay just compensation when it takes private property for a public use.

Pursuant to a New-Deal-era scheme designed to raise agricultural prices by tightly controlling the amount of agricultural products that went to market, family farmers like Marvin and Laura Horne of California are required to turn over a certain percentage of their raisin crop to the federal government, or else pay the government the dollar equivalent of that crop, plus certain fines.

In 2002-2003, the Hornes and other farmers were told to hand over 30 percent of their raisin crop (89,000 tons in total). In return, they received… nothing.

Amazingly, the Ninth Circuit held that the Hornes had not been unlawfully deprived of their property because the Takings Clause affords more protection to real property (land) than it does to personal property (in this case, raisins), and there was a possibility that the government might decide to pay money for the raisins it takes – a conclusion unsupported by text, precedent, or common sense.

The Court must correct this manifest error, lest an already-shriveled constitutional guarantee disappear entirely.

3. Obergefell v. Hodges

At long last, the Supreme Court will decide what, if anything, the Constitution has to say about same-sex marriage.

In the opinion that is now before the Court, the Sixth Circuit Court of Appeals upheld a series of same-sex marriage bans, explaining that the states’ marriage laws could rest on “rational speculation unsupported by evidence.”

As the Institute for Justice argued in its amicus brief, the Sixth Circuit’s application of the “rational basis test” – the default test in constitutional law – would allow public officials virtually unbridled discretion to discriminate and has no place in a constitutional republic dedicated to equality under the law.

The Court should reject invitations to simply defer to government and instead engage in a genuine, evidence-based effort to determine the legitimacy of the government’s actions.

4. Reed v. Town of Gilbert, Arizona

The town of Gilbert, Arizona, has a sign code that restricts the size, duration and location of temporary signs.

Under the code, the Good News Community Church’s temporary signs promoting church services are subject to far greater restrictions than temporary signs promoting political, ideological and various other messages.

That is, the sign code facially discriminates on the basis of the content of the messages communicated by the signs, effectively enabling government officials to act as censors.

The Supreme Court has held that content-based restrictions on speech are presumptively unconstitutional and must be subjected to the strictest scrutiny.

But the Ninth Circuit held that the sign code was “content-neutral” because of the Town of Gilbert’s assurances that it had no intention to discriminate.

IJ filed an amicus brief, urging the Court to clarify that facially content-based statutes should not be given a pass because of the supposedly good intentions of officials.

5. Walker v. Texas Division, Sons of Confederate Veterans

In its decision upholding the right to burn an American flag in Texas v. Johnson (1989), the Supreme Court held that “if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

This June, the Supreme Court will decide whether Texas breached that principle by denying an application for a specialty license plate bearing the Confederate flag on the grounds that some people would be offended by it.

In doing so, the Court has an opportunity to resolve theoretical confusion about the so-called “government speech doctrine,” which holds that the First Amendment’s Free Speech Clause does not apply when a government entity is speaking on its own behalf, as well as clarify whether specialty license plates issued by the government are pure government speech or instead involve a mixture of private and government speech.

This post first appeared at the Huffington Post.

  • Evan is the Assistant Director of the Center for Judicial Engagement at the Institute for Justice, a libertarian public interest law firm.