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Supreme Court roundup: the fall of government regulation

by Mark I. Schickman

In June, the U.S. Supreme Court finished one of its most interesting terms in recent memory when it comes to employment law. While it’s difficult to find a consistent pattern in the multiple waves of rulings that were issued, one theme emerges: a limitation on governmental authority in areas that have traditionally enjoyed wide latitude. 
Union issues addressed
Two of the decisions will have a great impact on unions, a continuation of the Court’s hostile stance toward organized labor. In NLRB v. Noel Canning, the Court invalidated President Barack Obama’s appointment of three members to the National Labor Relations Board (NLRB) as an improper use of the “recess appointment” power―and with that ruling put into question scores of subsequent NLRB decisions and orders. Then, in Harris v. Quinn, the Court revisited―and limited―the rule that a public employee can be forced to pay the equivalent of union dues even if the employee doesn’t want to join the union.

Unions have been in steady decline since 1981, when President Ronald Reagan defanged the air traffic controllers union and replaced those “safety-sensitive” positions en masse when the controllers went on strike. Since then, unions have been further weakened by a combination of tough economic times that made it an employer’s market and the passage of general employment protection laws that weakened the unions’ reason to exist. The Supreme Court is continuing that trend.

Affirmative action takes a hit
The Court also rejected the University of Michigan’s affirmative action plan in Schuette v. BAMN. The legal test behind affirmative action hasn’t changed much since Bakke v. Regents of the University of California was issued in 1978: Affirmative action is a drastic remedy, subject to strict scrutiny, and lawful only as the narrowest means to accomplish a compelling governmental need. But the factual components behind that test have continued to narrow; with each decision since Bakke, it is harder to establish the need and more difficult to show a narrow enough program. And if a state votes to outlaw affirmative action―as both California and Michigan have done―the Court will almost surely invalidate affirmative action. Most notably, Schuette was not simply another 5-4 decision; rather, Justice Stephen Breyer, a liberal, joined the six- justice majority. Affirmative action programs are on their last legs.

Hobby Lobby and the ACA
The Court surprised many observers when Chief Justice John Roberts was the swing vote in a 5-4 decision in 2012 upholding the Affordable Care Act (ACA), a decision he also authored. That same 5-4 majority has now ruled that Hobby Lobby can exercise a corporation’s religious right not to pay ACA premiums because they cover abortions. Although the Court expressly wrote that its limited holding wouldn’t extend to other employment decisions, it’s hard to imagine that the limits of the decision will not be broadly tested.

For example, under the Hobby Lobby analysis, couldn’t a corporate employer refuse to offer medical coverage to same-sex married couples? Or could it require women to dress consistently with the dictates of religious modesty rules? For that matter, why couldn’t a corporation enforce a fundamentalist paternalistic religious belief and ban women from the workforce altogether? The Court won’t allow the Hobby Lobby doctrine to go that far―but it’s hard to see an intellectually honest way to escape those broader applications.

Right to privacy
But nowhere was the Supreme Court’s skepticism of big government clearer than in the unanimous decisions in Riley v. California and U.S. v. Wurie, which prohibit police from looking at the contents of a cell phone or smartphone seized during an arrest. It’s to be expected that the four liberal justices would side with the right to privacy over the needs of law enforcement. But the entire Court rejected the arguments of the California attorney general, several other states, and the U.S. Department of Justice. As support for individual privacy, Riley and Wurie are difficult to square with recent Court decisions; as another slap against big government, they fit right in.

American legal precedent is a pendulum that comes close to going too far in one direction and then swings back. This term, the key theme was governmental regulation, against which the Roberts Court is pushing back. The practical ramifications of the current trend remain to be seen and may be clarified further next session, which begins October 6. Stay tuned.

Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco. He may be contacted at

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