Category Archives: Courts

Judge Brett M. Kavanaugh: His Jurisprudence and Potential Impact on the Supreme Court

Source: Andrew Nolan, Caitlain Devereaux Lewis, Congressional Research Service, CRS Report, R45293, August 21, 2018

This report provides an overview of Judge Kavanaugh’s jurisprudence and discusses his potential impact on the Court if he were to be confirmed to succeed Justice Kennedy. In particular, the report focuses upon those areas of law where Justice Kennedy can be seen to have influenced the High Court’s approach to certain issues or served as a fifth and deciding vote on the Court, with a view toward how Judge Kavanaugh might approach these same issues if he were to be elevated to the High Court. Of particular note, the report includes an Appendix with several tables that summarize the nominee’s rate of authoring concurring and dissenting opinions relative to his colleagues on the D.C. Circuit, and how Judge Kavanaugh’s opinions as an appellate judge have fared upon review by the Supreme Court.

Compelled Subsidies and the First Amendment

Source: William Baude, Eugene Volokh, Harvard Law Review (2018 Forthcoming), Date Written: July 29, 2018

From the abstract:
Sometimes the government compels people to pay money to organizations they oppose. A lawyer may be forced to fund a bar association, a college student to fund student group activities, a public employee forced to fund a labor union. Unsurprisingly, people may bristle at such compulsion. Nobody likes having their money taken, and knowing that it will be spent on causes one opposes seems to add insult to injury. But when is it unconstitutional? For forty years, the Court has unanimously concluded that being required to pay money to a union, or to a state bar, is a serious burden on one’s First Amendment rights. This burden, the Court has held, is generally unconstitutional when the money is used for most kinds of political advocacy. In Janus v. AFSCME, a majority of the Court went further, and held that requiring public employees to pay union agency fees is categorically unconstitutional, even when the money is used for collective bargaining. Such public-sector collective bargaining, the majority held, is itself inherently political. And the government interests in mandating such payments don’t suffice to justify such requirements. There was a strong dissent by four Justices, but as we discuss in Part I, we think the majority had the better argument on both of these two points. But we think the majority — and for that matter the dissent, and the unanimous opinions in Abood v. Bd. of Ed. and Keller v. State Bar — erred on the preliminary point. The better view, we think, is that requiring people only to pay money, whether to private organizations or to the government, is not a First Amendment problem at all. The employees in Janus were not compelled to speak, or to associate. They were compelled to pay, just as we all are compelled to pay taxes; our having to pay taxes doesn’t violate our First Amendment rights, even when the taxes are used for speech we disapprove of — likewise with having to pay agency fees. If we are right, as we argue in Part II, then the result in Janus was wrong. In Part III, we turn from evaluating the decision to anticipating its consequences. We doubt Janus will have significant effects on government speech rights (Part III.A), but it will likely bar the funding of other forms of private speech. Janus will likely extend to a prohibition on state bar dues, at least so long as the bar is seen as sufficiently removed from other government agencies (Part III.B). It might also include constraints on public university student governments’ use of student activity fees, though universities can create accounting workarounds that will practically allow such student activity funding to continue (Part III.C). Finally, and perhaps most consequentially, Janus may lead to massive liability for unions that have collected the agency fees that are now viewed as unconstitutional. (Part III.D). Though the fees were seen as valid when collected, the Supreme Court’s precedents say that constitutional reversals in civil cases are generally retroactive, so everyone in Janus’s shoes can get agency fee refunds just as Janus himself could (at least so long as the statute of limitations has not lapsed). Moreover, private organizations such as unions are generally not entitled to qualified immunity or similar defenses. While the unions do have some possible arguments to mitigate the damages or try to claim a special form of good faith, those defenses are speculative, and cannot be counted on.

2018 Supreme Court Commentary: Employment Law

Source: Jonathan Ross Harkavy – Patterson Harkavy LLP, Date Written: July 31, 2018

From the abstract:
This article summarizes in detail all decisions of the Supreme Court of the United States from its October 2017 Term that affect employment law, labor relations, employment arbitration and the employment relationship generally. The article also provides commentary on each of the decisions and on regulation of the employment relationship. The article also summarizes briefly the grants of certiorari in employment-related cases for the October 2018 Term.

How HR and Judges Made It Almost Impossible for Victims of Sexual Harassment to Win in Court

Source: Lauren B. Edelman, Harvard Business Review, August 22, 2018

…. Programs, policies, and training alone do not stop sexual harassment and abuse. My book Working Law — based on surveys of organizations, interviews with HR professionals, and content analyses of both human resources journals and federal court opinions — shows that sexual harassment policies and procedures can comfortably coexist in organizational cultures where women are regularly subjected to demeaning commentary, unwanted physical contact, and even threats or sexual assault. In other words, someone can be sexually harassed without recourse in an organization with plenty of rules on the books. ….

…. But one factor that’s often left out of this conversation is the role the courts have played in shielding companies from legal liability. When a case does manage to reach the legal system, courts will often side with a company due to the mere presence of an official policy, regardless of whether the policy is actually effective in addressing harassment or abuse. I call these policies “symbolic structures,” and they often do more to protect employers from lawsuits than they do to protect employees from harassment. ….

Announcing PACER Docket Alerts for Journalists, Lawyers, Researchers, and the Public

Source: Michael Lissner, CourtListener, August 21, 2018

Now Today we are thrilled to announce the general availability of PACER Docket Alerts on CourtListener.com. Once enabled, a docket alert will send you an email whenever there is a new filing in a case in PACER. We started CourtListener in 2010 as a circuit court monitoring tool, and we could not be more excited to continue expanding on those roots with this powerful new tool.

The best way to get started with Docket Alerts is to just make one. Try loading a popular case like U.S. v. Manafort or The District of Columbia v. Trump. Once the case is open, just press the “Get Alerts” button near the top. Then, just wait for your first alert.

We believe PACER Docket Alerts will be a valuable resource to journalists, researchers, lawyers, and the public as they grapple with staying up to date with the latest PACER filings.

Our goal with docket alerts is to make them as simple as possible to use. Once you have found a case you are interested in, a single click is all it takes to turn on an alert for that docket. From then on, we will send you an email as soon as we detect a new filing in that case. For more details on how to use docket alerts, please see our help page. …..

Laundering Racism Through the Court: The Scandal of States’ Rights

Source: Lynn Adelman, Dissent, Summer 2018

When three conservative law students founded the Federalist Society at Yale Law School in 1982, they probably didn’t expect that it would become one of the most influential legal organizations in the United States. They styled themselves as renegades, fighting back against a liberal legal establishment that was using the courts to trample individual freedoms. But the students had support from a few prominent jurists, including Antonin Scalia—one of their first faculty advisers—and with Ronald Reagan in office, the political tide was turning in their favor. Three-and-a-half decades later, the Federalist Society has some 40,000 members and millions of dollars in funding from conservative megadonors including the Koch brothers. No less than five of its current or former members have served on the Supreme Court (including Trump appointee Neil Gorsuch). Membership in the organization has become an important qualification for an appointment to the federal bench.

Moreover, since roughly the Society’s founding, the doctrine of federalism has become the basis for a new, conservative orthodoxy in U.S. law. The last two Chief Justices of the Supreme Court, William Rehnquist and John Roberts, have been strong adherents of federalism, as have virtually all of the other conservative justices. And President Trump is currently stocking the lower federal courts with like-minded jurists at a record pace.

By federalism, these legal conservatives mean that the authority of the federal government is limited, that states are sovereign bodies, and that courts should enforce limitations on federal power and bolster the power of states. On its face, the conservatives’ attachment to federalism may not seem particularly objectionable. After all, the founders did divide power between the federal government and the states so as to facilitate policymaking by those legislators most familiar with the issues in question. It is becoming clear, however, that the practical consequences of the conservatives’ attachment to federalism are far from benign. For African Americans, particularly those living in states of the former Confederacy, the impact of federalist doctrine as implemented by the Supreme Court has been no less than devastating—so much so that the justices’ view that it is justified by the principle of state sovereignty is indefensible.

In this article, I explore this issue primarily in the context of two of the Roberts Court’s most important federalist decisions, Shelby County v. Holder and National Federation of Independent Business (“NFIB”) v. Sebelius. In Shelby County, the Court struck down, on states’ rights grounds, the formula provided in the Voting Rights Act (“VRA”) for determining whether states and municipalities had to get approval from Washington (preclearance) for any change in their voting rules to ensure that the change was not racially discriminatory. Similarly, in NFIB, the Court struck down the inducement in the Affordable Care Act (ACA) for states to participate in the act’s Medicaid-expansion program on the grounds that it violated states’ rights. In both Shelby County and NFIB, Chief Justice Roberts wrote the principal opinion…..

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee, updated August 14, 2018

Source: Barry J. McMillion, Congressional Research Service, CRS Report, R44236, August 14, 2018

The appointment of a Supreme Court Justice is an event of major significance in American politics. Each appointment is of consequence because of the enormous judicial power the Supreme Court exercises as the highest appellate court in the federal judiciary. To receive appointment to the Court, a candidate must first be nominated by the President and then confirmed by the Senate. Although not mentioned in the Constitution, an important role is played midway in the process (after the President selects, but before the Senate considers) by the Senate Judiciary Committee. Specifically, the Judiciary Committee, rather than the Senate as a whole, assumes the principal responsibility for investigating the background and qualifications of each Supreme Court nominee, and typically the committee conducts a close, intensive investigation of each nominee.

Since the late 1960s, the Judiciary Committee’s consideration of a Supreme Court nominee almost always has consisted of three distinct stages — (1) a pre-hearing investigative stage, followed by (2) public hearings, and concluding with (3) a committee decision on what recommendation to make to the full Senate…..

Inside Trump’s Judicial Takeover

Source: Andy Kroll, Rolling Stone, August 19, 2018

How conservative operatives and Senate Republicans are helping the president pack the courts at a record pace. ….

…. As of this writing, Trump has put 26 new judges onto the appellate courts, more than any other chief executive at this point in the presidency. He has also nominated over 100 district-court judges and gotten 26 of those picks confirmed. These judges are overwhelmingly young, ideological and now set to serve lifetime appointments. And then, of course, there’s Justice Neil Gorsuch, Trump’s first pick for the Supreme Court, and Judge Brett Kavanaugh, the president’s second Supreme Court nominee, who stands a strong chance of confirmation. …..

….. What unites these judges is the radical legal doctrine of originalism — that the text of the Constitution should be understood only as it was intended when written more than 230 years ago. Originalism was long seen as a fringe philosophy; taken to its logical extreme, an originalist reading of the Constitution could mean a country without same-sex marriage, federal child-labor laws or the Americans With Disabilities Act. Today, however, originalism is the dominant legal philosophy on the right and the litmus test for any judge appointed by President Trump. …..

Three Key Takeaways From Supreme Court Union Ruling

Source: Maureen Minehan, Employment Alert, Volume 35 Issue 15, July 24, 2018
(subscription required)

Whether you’re a public employer with a union or a private employer with no union fears, there’s much to consider in the U.S. Supreme Court’s ruling in Janus v. AFSCME, Council 31. The 5-4 decision, issued on June 27, 2018, the final day of the 2017-2018 Supreme Court term, could change the influence unions have in elections and in policymaking.

The case centered on the legality of “fair share” fees that must be paid to unions by non-union members. The fees, also known as “agency fees,” are typically a percentage of the full dues paid by union members and represent the costs of union activities thought to directly benefit all employees, such as collective bargaining, grievance resolution and general representation. The goal is to prevent employees from becoming “free riders,” or individuals who benefit from union services without paying for them.

What We Can Learn About Stare Decisis (Respect for Precedent) from the Last Supreme Court Term

Source: Vikram David Amar, Verdict, August 6, 2018

The 2017–18 Supreme Court term was noteworthy for many reasons. One is the fact that the Court overruled two longstanding (at least 40 years old) constitutional precedents by 5–4 votes, albeit with different lineups. In Janus v. American Federation of State, County and Municipal Employees, Council 31, the five more conservative justices held that it violates the First Amendment for public employees who choose not to become a member of the public sector union that represents them to nonetheless have to pay so-called “fair share” fees to the union to defray the cost of collective bargaining. In contrast, in South Dakota v. Wayfair, Justice Ginsburg joined four of the more conservative justices in the majority to uphold against a Commerce Clause challenge a state law requiring an online retailer that does significant business in the state but that lacks a brick-and-mortar presence in the state to collect and remit sales taxes, while the usually more conservative Chief Justice Roberts led Justices Breyer, Kagan and Sotomayor in dissent.

Notwithstanding these distinctive lineups (which perhaps can be explained at least in part by reference to the subject matter of the two cases) the justices’ writings in both cases, looked at in connection with each other, can help us better understand important principles about the proper way to implement the doctrine of horizontal stare decisis—the Court’s respect its own prior rulings. In particular, I focus below on the justices’ approach to three questions that are raised by one or both of the high-profile stare decisis cases of last term…..