Nice close of the 2013 Term
The 2013 Term is drawing to a close (I think some opinions are due to be announced Monday) and it seems to be ending quite nicely, with two opinions on Con law which are 9-0s (rare at the end of a Term, which is when all the bitterly contested 5-4s come down).
There's Riley v. California, a 9-0 on the Fourth Amendment (how long has it been since we've seen one of those?) Police may obtain a smartphone during a search incident to arrest, but cannot explore its contents -- texts, photos, videos -- without probable cause and a warrant. Alito's concurrence asks whether the power to search incident to arrest is truly limited to protecting officer safety,
And there's NLRB v. Canning, on the President's Recess Appointments Clause. Another 9-0. Five of the Justices take a narrower approach to the question, holding that clause gives the power to make interim appointments during any Senate "recess" (i.e., not just during gaps between formal "Sessions" or "Congresses") of sufficient length, but a three day gap is too brief, and a gap of up to ten days is questionable.
The other four Justices (Scalia, Roberts, Alito, and Thomas) take a view that I thought reasonable: the power is to fill "Vacancies that may happen" while the Senate is in recess. A vacancy that occurs before the recess does not "happen" during it. The purpose, in the days when Senate sessions were briefer than now, was to patch gaps that arise during a recess, not to fill posts where the Senate had the chance to act and refused to.