Category Archives: Courts

SCOTUS Watch

Source: Jay Pinho and Victoria Kwan, SCOTUS Watch, 2018

What is this?
SCOTUS Watch tracks the public statements made by United States senators about how they plan to vote on the Supreme Court nominee, Brett Kavanaugh, and tallies them into a likely vote count. This tally is based solely on their statements: we do not make estimates or guesses based on a senator’s party affiliation or ideology.

Related:
CIA Successfully Conceals Bay Of Pigs History
Source: National Security Archive, May 21, 2014
The U.S. Court of Appeals for the D.C. Circuit yesterday joined the CIA’s cover-up of its Bay of Pigs disaster in 1961 by ruling that a 30-year-old volume of the CIA’s draft “official history” could be withheld from the public under the “deliberative process” privilege, even though four of the five volumes have previously been released with no harm either to national security or any government deliberation. …. The 2-1 decision, authored by Judge Brett Kavanaugh (a George W. Bush appointee and co-author of the Kenneth Starr report that published extensive details of the Monica Lewinsky affair), agreed with Justice Department and CIA lawyers that because the history volume was a “pre-decisional and deliberative” draft, its release would “expose an agency’s decision making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.”….

D.C. Circuit Review – Reviewed: Brooding Spirits, Judge Kavanaugh Edition
Source: Aaron Nielson, Notice & Comment, July 9, 2018

Here’s Where Trump’s New Supreme Court Nominee Brett Kavanaugh Stands On Abortion, Executive Power, And Guns
Source: Zoe Tillman, BuzzFeed News, July 9, 2018
Kavanaugh has written hundreds of opinions in more than a decade on the DC Circuit.

Brett Kavanaugh, Donald Trump’s Supreme Court pick, explained
Source: Dylan Matthews, Vox, July 9, 2018
He’s a veteran of every conservative fight from the Clinton impeachment to the fight against Obamacare.

Brett Kavanaugh has sided with broad views of presidential powers
Source: Ann E. Marimow Washington Post, July 9, 2018

Students, Alumni Urge Yale Law School’s Leadership To Denounce Brett Kavanaugh
Source: Carla Herreria, Huffington Post, July 11, 2018
Even though Yale Law School published a press release touting the accomplishments of Brett Kavanaugh, its alumnus and President Donald Trump’s new Supreme Court nominee, not everyone at the school is singing his praises. As of Tuesday night, more than 200 students, staff members and alumni of Yale Law School signed an open letter calling for the institution to rescind its apparent support of Kavanaugh.

Who Is Brett Kavanaugh, President Trump’s Pick For The Supreme Court?

Source: Domenico Montanaro, NPR, July 9, 2018

President Trump has chosen Brett Kavanaugh, a conservative judge from the U.S. Court of Appeals for the D.C. Circuit — often thought of as the second-most-powerful court in the country — to replace Justice Anthony Kennedy on the Supreme Court.

Kavanaugh is a connected Washington insider with roots in politics in the George W. Bush White House. He has written almost 300 opinions for the D.C. Circuit in 12 years — and he is only 53, which means he could serve on the high court for a very long time…..

Related:
Kavanaugh: Threat to Workers and to OSHA
Jordan Barab, Confined Space blog, July 10, 2018

While most of the discussion of President Trump’s nomination of Brett Kavanaugh to the Supreme Court focuses on the possibility that he will be the deciding vote to repeal Rowe v. Wade or that the will bend over backwards to help Trump out of the Russia investigation, there is clear evidence that Kavanaugh is overly friendly to corporate America, and hostile to workplace safety, the Occupational Safety and Health Act and the environment…..

Watch Out Workers, Here Comes Brett Kavanaugh
Source: Andrew Strom, On Labor blog, July 10, 2018

….As Kavanaugh’s dissent in the SeaWorld case illustrates, the vision he will bring to the high court is one where the people who work at regulatory agencies are sneered at as “bureaucrats,” and the measures the agencies take to sand the edges off of unbridled capitalism are dismissed as “paternalism.” My advice to workers is to fasten your seatbelts (while you still have them) because it’s going to be a bumpy ride….

Supreme Court nominee Kavanaugh argues that presidents can’t be indicted, sued, or even investigated
Source: Mark Sumner, Daily Kos, July 9, 2018

Kavanaugh is radically conservative. Here’s the data to prove it.
Source: Elliott Ash and Daniel L. Chen, Washington Post, July 10, 2018

He’s to the right of, and much more political than, his peers on the federal bench. …. On the circuit court, Kavanaugh tended to dissent more often along partisan lines than his peers, according to our research. He justified his decisions with conservative doctrines far more than his colleagues, citing politicized precedents consistent with other Republican-appointed judges, invoking the original Articles of the Constitution (consistent with the Originalist jurisprudence favored by conservative jurists) and using the language of economics and free markets. What’s more, Kavanaugh’s divisiveness ramped up during campaign season: He disagreed with his colleagues more often before elections, suggesting that he feels personally invested in national politics. ….

A dig through Kavanaugh’s record on education finds plenty of material
Source: Mel Leonor, Politico, Morning Education, July 10, 2018

How a private meeting with Kennedy helped Trump get to ‘yes’ on Kavanaugh
Source: Christopher Cadelago, Nancy Cook and Andrew Restuccia, Politico, July 9, 2018

While he was eager to keep the suspense alive, the president was always leaning toward Kennedy’s former clerk.

Meet Judge Brett Kavanaugh, Trump’s Supreme Court Nominee
Source: Andrea González-Ramírez, Refinery 29, July 9, 2018

Trump’s Supreme Court nominee opposes net neutrality, supports NSA bulk collection
Source: Taylor Hatmaker, TechCrunch, July 9, 2018

Kavanaugh’s Record Doesn’t Bode Well for Voting Rights
Source: Ari Berman, Mother Jones, July 10, 2018

He voted to uphold a law that threatened to disenfranchise tens of thousands of minority voters.

Scotusblog:
Nomination of Brett Kavanaugh to the Supreme Court

A “view” from the East Room: The Brett Kavanaugh story
07.10.18 Mark Walsh

Trump nominates Kavanaugh to Supreme Court
07.09.18 Amy Howe

Reactions to the Kavanaugh nomination
07.09.18 Andrew Hamm

Evening round-up: Trump nominates Kavanaugh to Supreme Court
07.09.18 Jon Levitan

Live blog of nomination with First Mondays (Update: Completed)
07.09.18 Andrew Hamm

Past summer nomination timelines
07.03.18 Andrew Hamm

Potential nominee profile: Brett Kavanaugh
06.28.18 Edith Roberts

….In labor and employment law cases more generally, Kavanaugh’s rulings have tended to favor employers. In 2016, in Verizon New England v. NLRB, Kavanaugh held that the NLRB had improperly overturned an arbitration decision when it found that a “union’s waiver of its members’ right to picket did not waive their right to visibly display pro-union signs in cars on Verizon property.” In National Association of Federal Employees v. Vilsack, in 2012, he dissented from an opinion holding that a random drug-testing program for government employees who work in residential Job Corps centers required a showing of individualized suspicion under the Fourth Amendment. Partial dissents from panel rulings upholding NLRB findings of unfair labor practices or discriminatory hiring include Midwest Division MMC v. NLRB (2017) and NLRB v. CNN America (2017)…..

The Kavanaugh Nomination and Labor
Source: Sharon Block, On Labor blog, July 10, 2018

….Opposition to the nomination by the labor movement is no surprise.  Kavanaugh’s record demonstrates consistent support for the interests of employers and a lack of concern for the interests of workers and the government agencies that come to the D.C. Circuit to protect workers’ rights.  Below, I will provide an overview of his record and attempt to make the case that his record reflects a sustained and, at times, aggressive hostility to the role of the law in protecting the vulnerable and less powerful…..

Is the Supreme Court’s legitimacy undermined in a polarized age?

Source: Kevin J. McMahon, The Conversation, July 7, 2018
When I learned Justice Anthony Kennedy would retire, my thoughts went immediately to the confirmation of the newest justice, Neil Gorsuch.

The Senate’s confirmation of Gorsuch was unprecedented in the history of the country. Never before had a “minority president” named a “minority justice.”

I’m a scholar of the presidency and the Supreme Court. I will soon publish an article in the Chicago-Kent Law Review that considers the concepts of a “minority president” and a “minority justice” in relation to presidential appointments to the High Court for much of American history.

Here’s what I mean by these terms.

Court out of step with America?

Since Donald Trump lost the popular vote in the 2016 election, he is, by definition, a minority president, elected by a minority of the voters.

Similarly, I define a “minority justice” as a nominee who won confirmation with the support of a majority of senators, but senators who did not represent a majority of voters.

Consider Gorsuch. He was supported by a majority of senators – 51 Republicans and three Democrats. But the votes earned by those 54 senators only added up to a total of 54,098,387.

The 45 senators who opposed Gorsuch, all Democrats, collected 73,425,062 votes in their most recent elections – a nearly 20 million-vote difference…..

President’s Selection of a Nominee for a Supreme Court Vacancy: Overview

Source: Barry J. McMillion, Congressional Research Service, CRS Insight, IN10923, June 27, 2018

On June 27, 2018, Justice Anthony Kennedy, after serving on the Supreme Court as an Associate Justice since 1988, announced his intention to retire from the U.S. Supreme Court. Justice Kennedy indicated that his retirement would be effective July 31, 2018. This Insight provides an overview of several issues related to the selection of a nominee by a President for a vacancy on the Court.

Related:
Justice Kennedy Retires: Initial Considerations for Congress
Source: Andrew Nolan, Michael John Garcia, Congressional Research Service, CRS Legal Sidebar, LSB10159, June 28, 2018

This Sidebar highlights various areas of lawin which Justice Kennedy —either by authoring or joining a Supreme Court opinion— proved consequential to the trajectory of Supreme Court jurisprudence. In so doing, this post provides a broad overview of key legal issues Congress (and, more specifically the Senate, through its advice and consent role) may wish to consider as it reflects on Justice Kennedy’s jurisprudence and how his eventual successor might shape the future of the Court, Congress, and the nation as a whole.

Supreme Court Nomination: CRS Products
Source: Andrew Nolan, Congressional Research Service, CRS Legal Sidebar, LSB10160, June 29, 2018

On June 27, 2018, Justice Anthony M. Kennedy announced his retirement from the Supreme Court, effective July 31, 2018, ending a thirty-year tenure on the Court. Below are key CRS products related to Supreme Court vacancies and nominations.

Supreme Court Bans Mandatory Union Fees for Public-Sector Workers

Source: Lisa Nagele-Piazza, SHRM, June 27, 2018

In a closely watched case, the U.S. Supreme Court overturned 40 years of precedent by ruling that mandatory public-sector union dues are unconstitutional.

In a 5-4 vote on June 27, the justices held that states and public-sector unions may no longer require workers to pay agency fees. “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay,” Justice Samuel Alito Jr. wrote for the majority.

In dissent, Justice Elena Kagan said the decision will have large-scale consequences. “Public employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces,” she wrote…..

Related:
Decline in Union Membership Expected After High Court Ruling
Source: Lisa Nagele-Piazza, SHRM, June 28, 2018
Supreme Court held that mandatory public-sector union fees are unconstitutional

In Janus, the Court’s “Originalists” Show Their True Colors

Source: Andrew Strom, On Labor, June 29, 2018

It shouldn’t have come as a surprise to anyone that when faced with a choice between originalism and right-wing ideology, the Supreme Court’s two avowed originalists, Justices Gorsuch and Thomas, decided that they weren’t going to let doctrinal purity get in the way of their desired result. It’s worth taking a close look at how easily Justices Gorsuch and Thomas tossed originalism aside in Janus, since President Trump’s nominee to replace Justice Kennedy will almost certainly proclaim similar fealty to the text of the Constitution as originally understood.

Trump’s Supreme Court List

Source: Free Law Project, June 27, 2018

Associate Justice Kennedy informed President Trump that he would be retiring from the Supreme Court effective July 31st. In response to this announcement, President Trump stated that his next Supreme Court nomination would come from his existing list of potential Supreme Court justices.

In our Judge and Appointment database, we have compiled extensive information about American judges, including their biographical data, the roles they have held before, during and after their time in the judicial branch, their political affiliations, and their campaign finance information (if applicable). The judges are also linked to the opinions they have authored.

Below are links to every judge in our database that is on President Trump’s list. For a few judges, we have not yet completed this work, and so there’s no link.

Supreme Court Rules Against Public-Sector Unions

Source: Colleen Flaherty, Inside HigherEd, June 28, 2018

High court says public employees don’t have to pay regular agency fees to unions that represent them in collective bargaining and more, which could hurt faculty and staff unions.

Related:
Janus, Faced
Source: Matt Reed, Inside HigherEd, Confessions of a Community College Dean blog, June 27, 2018

The ruling on unions.
A friend in grad school once commented that she and I followed the Supreme Court the same way that normal people follow baseball. So yes, I’ve been mulling over the Janus v AFSCME case for months. Longer, in fact, if you count the version that didn’t get decided when Scalia died.

I’ve been working in unionized public higher education since 2003. At all three community colleges, and in both states, representation fees were part of the order of the day. I’ve known faculty who swear that the union is the only thing standing between them and penury, and I’ve known faculty who wanted absolutely nothing to do with their union. Having also worked in a decidedly non-union setting — DeVry — I’ve seen the differences. But here I’ll focus instead on possible long-term fallout. Assuming the ruling stands for a while, what’s likely to happen?

The obvious immediate impact will be that the folks who only pay representation fees because they’re compelled to, will stop. Anecdotally, I’d guess that this is a small, but non-zero, number. That will represent lost income for the union, and a short-term boost in take-home pay for those employees.
What happens next is less obvious.

Teachers’ activism will survive the Janus Supreme Court ruling
Source: Sherman Dorn, The Conversation, June 27, 2018

….As a scholar of the history of post-World War II education policy, I see this decision as an important landmark in the history of teachers unions. The Supreme Court ruling is a serious legal and financial blow, but it will not kill public employee unions, teachers unions – or the ability of teachers to work together to amplify their voices for social change….

Trump’s Supreme Court Strikes Blow to Government Workers, Good Paying Jobs
Source: Mary Bottari, Center for Media and Democracy, June 27, 2018

In a major blow to organized labor and good paying government jobs, the U.S. Supreme Court ruled today that government workers who choose not to join a union cannot be charged fees to reimburse the union for the cost of representing them in collective bargaining.

The decision was 5-4 in the Janus vs. AFSCME Council 31 case, with Trump appointee Neil Gorsuch supplying the deciding vote. Justice Samuel Alito, who actively invited a challenge to union fees, wrote the decision for the Court’s right-wing majority.

In today’s decision, Alito wrote that the fees, called “agency fees,” violated the First Amendment. In doing so, Alito overruled a 41-year-old Supreme Court decision legalizing these fees in the Abood vs. Detroit Board of Education decision.

The decision ushers in “right to work” style conditions for public employees in states across the nation. These anti-union measures originated in the Jim Crow South as a means of undermining unions who were organizing black and white workers together in the same shop. Predictably, Koch brothers groups–such as Americans for Prosperity, the American Legislative Exchange Council (ALEC), and the State Policy Network–cheered the ruling, while union leaders prepared to renegotiate thousands of contracts and deal with a new legal landscape for unions across the land.

Janus decision extends First Amendment ‘right of silence’
Source: Robert A. Sedler, The Conversation, June 27, 2018

The Supreme Court’s Janus ruling extends strong protection to the First Amendment ‘right of silence’ and continues their trend of expanding First Amendment rights, often at the behest of conservatives.

6 excerpts that explain the Supreme Court’s big anti-union ruling

Source: Dylan Matthews, Vox, June 27, 2018

Janus v. AFSCME is a very, very big deal. ….

…. On Wednesday, the Supreme Court issued what is probably its single most consequential ruling of the year. Janus v. AFSCME is a devastating blow against public sector unions, barring them from charging “agency fees” to the public employees for whom they negotiate pay increases and benefit bumps if those employees decline to join the union as full members.

Now, teachers unions, police unions, and more will be forced to lobby public employees to pay full union dues, even though those employees will get the same benefits from the union if they pay nothing at all.

You can read our full explainer on the case here, but it’s worth diving into the actual language of Justice Samuel Alito’s 5-4 majority opinion and Justice Elena Kagan’s dissent in more detail to understand exactly why the Court decided to make the whole United States adopt a “right-to-work” policy when it comes to public employees.

1) The Court has overruled a decision it made in 1977 ….
2) The Court’s conservatives view making public employees pay agency fees as an unacceptable First Amendment violation ….
3) Alito doubts that this decision will hurt public-sector unions as much as they fear ….
4) Alito is deeply worried about the political economy effects of public unions ….
5) Public employee union membership has to be opt-in now, not opt-out ….
6) Kagan argues this ruling throws stare decisis out the window ….

Court Rules Against Unions in Janus

Source: Jeff Hirsch, Workplace Prof blog, June 27, 2018

The Supreme Court has just released its decision in Janus v. AFSCME. I’m not typically the best predictor of what the Court will do, but even I had this one called from the moment Justice Gorsuch was confirmed. The Court, in a 5-4 decision by Justice Alito, overruled its own Abood decision to hold that public-sector union fees are unconstitutional. I won’t repeat how we got to this point (although you can start at my earlier post on the Janus oral argument, which has links on the aborted Friedrichs case, as well as our coverage of 2014’s Harris v. Quinn, in which Alito made clear where he wanted to go on this issue), but the upshot is that public-sector unions nationwide must now operate on an opt-in basis for all union contributions—even contributions that go to core collective-representation services. In other words, the free rider issue that exists for the private sector in right-to-work states now exists for all public-sector workplaces.

The basis for the decision is that dissenting employees’ have a 1st Amendment right not to pay any funds to the union representing them—even for collective bargaining and other work that goes to the benefit of all unit employees. This follows the dicta in Harris, but is a clear departure from the Court’s public-sector employment jurisprudence, which does not look favorably on individual employees’ 1st Amendment claims. In particular, if this case didn’t involve unions, you would expect the Court to hold that concerns about dues paid to a third party are not matters of public concern. This result, to my mind, is the culmination of several related factors: in addition to the strong pro-business bent of this Court, we’ve seen public-sector unions becoming more powerful than their private-sector counterparts, while also becoming strongly aligned with one political party. This has occurred during a period of time in which political antagonism is on the rise and we’ve more jurists appear willing to join that battle. As a result, unions as a whole, but public-sector ones in particular, have been targeted both politically and legally. And they just took a massive loss at the Court today.

Janus, of course, is not the end (although some unions may feel like it right now). Here are some questions I have after the decision—please add more (or responses) in the comments: …..