Category Archives: Courts

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

Source: Adam Santucci and Langdon Ramsburg, Legal Intelligencer, August 2, 2018
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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. ….

President Trump Nominates Judge Brett Kavanaugh: Initial Observations

Source: Andrew Nolan, Congressional Research Service, CRS Legal Sidebar, LSB10168, July 10, 2018

….This Sidebar provides some initial observations on Judge Kavanaugh’s nomination to the Supreme Court, noting his background and some initial clues as to how the nominee may impact the future of the Court. CRS is preparing products that discuss Judge Kavanaugh’s views on the law in greater detail. Existing CRS products discuss Justice Kennedy’s jurisprudence and other aspects of the Court vacancy. ….

Related:
Supreme Court nominee Brett Kavanaugh lauded late Chief Justice Rehnquist for dissenting in Roe vs. Wade and supporting school prayer
Source: David G. Savage, Los Angeles Times, July 11, 2018

Judge Brett M. Kavanaugh, President Trump’s Supreme Court nominee, gave a revealing speech last fall in which he lauded former Chief Justice William H. Rehnquist for having dissented in Roe vs. Wade and for rejecting the notion of “a wall of separation between church and state.” He also praised the late chief justice’s unsuccessful effort to throw out the so-called “exclusionary rule,” which forbids police from using illegally obtained evidence. All three of areas of law — abortion, religion and police searches — are likely to be in flux if Kavanaugh is confirmed and joins the high court this fall….

Trump’s Supreme Court Pick Could Spell a Fresh Hell for Workers’ Rights

Source: Moshe Z. Marvit, In These Times, July 10, 2018

On Monday, President Donald Trump announced his nomination of conservative Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the U.S. Supreme Court. If Kavanaugh is confirmed, Chief Justice John Roberts, a fellow conservative, will become the ideological and political center of the Supreme Court, and protections for women, minorities, voting rights, civil liberties and more could come under threat. Workers and labor unions should be particularly concerned about Judge Kavanaugh’s history of siding with businesses against workers and for pushing a deregulatory agenda. ….

Related:
Family Man Brett Kavanaugh Thinks Businesses Shouldn’t Be Liable If Employees Are Eaten On The Job
Source: Bess Levin, Vanity Fair, July 10, 2018

The Supreme Court nominee has also overruled federal regulators 75 times, to the business community’s delight.

Brett Kavanaugh Ruled Against Workers When No One Else Did
Source: Dave Jamieson, Huffington Post, July 10, 2018

His dissents involving undocumented meatpacking workers and a death at SeaWorld tell us a lot about the worldview of Trump’s Supreme Court pick.

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.