Category Archives: Courts

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…..

The Demise of Fair Share Fees: ‘Janus’ and Its Impact

Source: Adam Santucci and Langdon Ramsburg, Legal Intelligencer, August 2, 2018
(subscription required)

Recently, the U.S. Supreme Court issued a landmark decision, which may ultimately prove to alter the landscape of public sector labor relations and undermine the political clout of public sector labor unions throughout the United States.

Recently, the U.S. Supreme Court issued a landmark decision, which may ultimately prove to alter the landscape of public sector labor relations and undermine the political clout of public sector labor unions throughout the United States. The court’s holding in Janus v. AFSCME Council 31, 138 S. Ct. 2448 (2018), was clear: requiring public sector employees to pay “fair share fees” (sometimes referred to as “agency fees”) violates the First Amendment.

The road to Janus was long and took some interesting twists and turns. To fully understand Janus and its impact, it is necessary to start at the beginning—the court’s 1977 holding in Abood v. Detroit Board of Education, 431 U.S. 209 (1977).

Judicial Politics and Sentencing Decisions

Source: Alma Cohen, Crystal S. Yang, Harvard Law School, May 7, 2018

From the abstract:
This paper investigates whether judge political affiliation contributes to racial and gender disparities in sentencing using data on over 500,000 federal defendants linked to sentencing judge. Exploiting random case assignment, we find that Republican-appointed judges sentence black defendants to 3.0 more months than similar non-blacks and female defendants to 2.0 fewer months than similar males compared to Democratic-appointed judges, 65 percent of the baseline racial sentence gap and 17 percent of the baseline gender sentence gap, respectively.These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.

State Constitutions in the Era of a Shifting Supreme Court

Source: Rockefeller Institute of Government and the Government Law Center at Albany Law SchoolJuly 23, 2018

The Rockefeller Institute of Government and the Government Law Center at Albany Law School recently hosted “How Can State Constitutions Respond to a Shifting Supreme Court?” to examine the role state constitutions can play if the Supreme Court begins to roll back federal protections.

With the retirement of Supreme Court Justice Anthony Kennedy and the recent nomination of Brett Kavanaugh to take his place, the Supreme Court is expected to shift further to the conservative end of the ideological spectrum, with the potential for weakening or even extinguishing important constitutional protections.

Much attention is being paid to the possible implications for reproductive rights, protections for immigrants, affirmative action, environmental protections, LGBTQ rights, and other issues. So what does it mean for New Yorkers — or for states more generally? Although we often don’t think of state constitutions, many of them offer protections above and beyond what is provided in the federal Constitution.

What role can state constitutions play if the Supreme Court begins to weaken federal protections? In many ways, your position on the states-versus-federal rights issue often depends upon where you sit. Last year the Rockefeller Institute and Government Law Center at Albany Law School issued a report on the topic.

Related:
Protections in the New York State Constitution Beyond the Federal Bill of Rights
Source: Edited by Scott N. Fein and Andrew B. Ayers, the Government Law Center at Albany Law School and the Rockefeller Institute of Government, April 18, 2017

The Supreme Court vs. democracy

Source: Ezra Klein, Vox, July 9, 2018

Even those most invested in the Court’s grandeur are finding it hard to defend its reality. ….

…. The first seat Trump filled opened under Barack Obama, but Senate Republicans refused to consider any replacements, hoping to win the 2016 election and see the seat filled by a Republican. Mitch McConnell’s bet paid off: Trump did win that election, though he lost the popular vote decisively, and Neil Gorsuch was named to the Court.

Such appointments are becoming the norm. With Kennedy’s replacement, four out of the Supreme Court’s nine justices — all of whom have lifetime tenure — will have been nominated by presidents who won the White House, at least initially, despite losing the popular vote.

There’s nothing necessarily wrong with that. America, for all its proud democratic rhetoric, is not actually a democracy. Until and unless the country chooses to abolish the Electoral College, it will remain not-quite-a-democracy, with all the strange outcomes that entails. Liberals may complain, but the rules are the rules, and both sides know what they are.

But the Supreme Court’s conservative bloc doesn’t just reflect the outcomes of America’s undemocratic electoral rules; it is writing and, in some cases, rewriting them, to favor the Republican Party — making it easier to suppress votes, simpler for corporations and billionaires to buy elections, and legal for incumbents to gerrymander districts to protect and enhance their majorities.

The Supreme Court has always been undemocratic. What it’s becoming is something more dangerous: anti-democratic. ….