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Supreme Court

Next Monday, Nov. 24, Cato will host a luncheon panel on the 1956 Supreme Court case of One, Inc., v. Olesen, a little case with big implications that reverberate to this day. Panelists include attorneys Lisa Linsky (McDermott Will & Emery) and Robert Corn-Revere (Davis Wright Tremaine) and author/Brookings fellow Jonathan Rauch, and I’ll be moderating. From the description:

Sixty years ago the U.S. Supreme Court’s first case on gay rights was set in motion. It has been neglected through many of the intervening years but is now recognized as a landmark in the law of free speech. In One, Inc., v. Olesen, a fledgling Los Angeles–based magazine seeking to advance the interests of homosexuals sued after the Post Office declared it obscene and banned its distribution through the mail. Against long odds, facing the full force of the federal government, and with little support from the civil libertarians of the day, the small publication persevered to the Supreme Court—and its unexpected victory there opened up legal space for other dissenting and unpopular opinions to thrive. Join us as three experts discuss the One, Inc. case as a turning point in First Amendment law and an example of how freedom of expression works to vindicate the interests of those on society’s margins. We’ll also learn about ongoing efforts to get the U.S. government to open its archives to shed light on its handling of the case.

Register free or watch online at this link.

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[cross-posted from Cato at Liberty and expanded with a P.S.]

Even by his standards, Paul Krugman uses remarkably ugly and truculent language in challenging the good faith of those who take a view opposed to his on the case of King v. Burwell, just granted certiorari by the Supreme Court following a split among lower courts. Krugman claims that federal judges who rule against his own position on the case are “corrupt, willing to pervert the law to serve political masters.” Yes, that’s really what he writes – you can read it here.

A round of commentary on legal blogs this morning sheds light on whether Krugman knows what he’s talking about.

“Once upon a time,” Krugman claims, “this lawsuit would have been literally laughed out of court.” [Citation needed, as one commenter put it] The closest Krugman comes to acknowledging that a plain-language reading of the statute runs against him is in the following:

But if you look at the specific language authorizing those subsidies, it could be taken — by an incredibly hostile reader — to say that they’re available only to Americans using state-run exchanges, not to those using the federal exchanges.

New York City lawyer and legal blogger Scott Greenfield responds:

If by “incredibly hostile reader,” Krugman means someone with a basic familiarity with the English language, then he’s right.  That’s what the law says. … There is such a thing as a “scrivener’s error,” that the guy who wrote it down made a mistake, left out a word or put in the wrong punctuation, and that the error was not substantive even though it has a disproportionate impact on meaning.  A typo is such an error.  I know typos. This was not a typo. This was not a word misspelled because the scribe erred.  This was a structural error in the law enacted. Should it be corrected? Of course, but that’s a matter for Congress.

While some ObamaCare proponents may now portray the provision as a mere slip in need of correction, as I noted at Overlawyered in July, “ObamaCare architect Jonathan Gruber had delivered remarks on multiple 2012 occasions suggesting that the lack of subsidies for federally sponsored exchanges served the function (as critics had contended it did) of politically punishing states that refuse to set up exchanges.”

Josh Blackman, meanwhile, points out something incidental yet revealing about Krugman’s column: its homespun introductory anecdote about how his parents discovered that they had been stuck with a mistaken deed to their property, fixed (“of course”) by the town clerk presumably with a few pen strokes and a smile, couldn’t possibly have happened the way Krugman said it did. Property law, much more so than statutory construction, is super-strict about these matters.

If your deed is incorrect, you cannot simply get the “town clerk” to “fix the language”. … Mistakes are enforced by courts. That’s why [everyone] should purchase title insurance. …

So this is the exact opposite example of what Krugman would want to use to illustrate why King is “frivolous.” If courts applied property doctrine to the construction of statutes, this case would be over in 5 seconds. The government loses.

To be sure, there may be better arguments with which to defend the Obama administration’s side of the King case. But do not look for them in Paul Krugman’s commentary, which instead seems almost designed to serve the function of pre-gaming a possible defeat in Kingby casting the federal judiciary itself as “corrupt” and illegitimate.

P.S. “Krugman’s column in today’s NYT on King is the liberal equivalent of a Rush Limbaugh tirade.” [Gerard Magliocca] Krugman not notably consistent on views of statutory interpretation [Simon Lester] ObamaCare architect Jonathan Gruber caught on camera saying “lack of transparency” key to passing the bill; he “may believe that American voters are stupid, but he was the one dumb enough to say all this on camera” [Peter Suderman, Mickey Kaus ("I am big. It's the electorate that got small.")] How to argue the administration side in a less unhinged way than Krugman does [David Ziff via Jonathan Adler]

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The Supreme Court hears oral argument in the Yates v. U.S. case [WLF, ABA Journal, Daniel Fisher, earlier] Best line from a brief, via @ToddRuger: “More specifically, a false entry cannot be made in a fish.”

P.S. Radley Balko points out that while Congress has filled the U.S. Code with strict penalties for destruction of potentially relevant evidence, federal officials themselves almost never face real consequences when they destroy such evidence.

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Supreme Court roundup

by Walter Olson on October 14, 2014

  • Sorry, National Review, but the marriage rulings are really nothing at all like Dred Scott [my new piece at The Daily Beast] Or Roe v. Wade either [Dale Carpenter, Ilya Shapiro, Charles Lane]
  • Ninth Circuit won’t get the message about not expropriating raisin farmers and it’s time for the Court to remind it again [also Ilya Shapiro, earlier]
  • Private businesses, even those that are quasi-public like Amtrak, shouldn’t be delegated the right to regulate their competitors [Ilya Shapiro yet a third time]
  • “Supreme Court takes case on duration of traffic stops” [Orin Kerr, Rodriguez v. United States]
  • Housing disparate impact theory, dodged by administration last time around, returns to Court [Bloomberg, Daniel Fisher; Texas Department of Housing and Community Affairs v. The Inclusive Communities Project; earlier]
  • Noteworthy feature of just-argued wage-and-hour case is that Obama Department of Labor is taking the employer side [Denniston, SCOTUSBlog; Integrity Staffing Solutions v. Busk]
  • “Supreme Court to hear case on right of Maryland to tax out-of-state income” [Ashley Westerman, Capital News Service]
  • Mark your calendar if in D.C.: I’ll be moderating a Nov. 3 talk at Cato by Damon Root about his new book Overruled: The Long War for Control of the U.S. Supreme Court, with commentary from Roger Pilon and Jeffrey Rosen [Reason]

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New Supreme Court term

by Walter Olson on October 6, 2014

Ilya Shapiro, Roger Parloff, Daniel Fisher, and Damon Root preview what’s on the docket.

Last week Cato held its annual Constitution Day celebrating the publication of the new 2013-14 Cato Supreme Court Review, with articles from such contributors as Roger Pilon, David Bernstein, Eric Rassbach, Andrew Pincus, Richard Epstein, and P.J. O’Rourke. They discuss most of the big and a few of the not-so-big cases of the past term, including Hobby Lobby, Canning, Schuette, Bond, McCutcheon, and Harris v. Quinn. The panel above (also available as video and podcast download) looks forward to the upcoming October term; it’s moderated by the review’s editor, Ilya Shapiro, with panelists Michael Carvin, Tom Goldstein, and Richard Wolf. The review concludes with an essay on the same general subject by Miguel Estrada and Ashley Boizelle.

This year, the contents of the review are available for immediate download (although we also encourage buying hard copies, of course.) As I’ve said while singing its praises before, it’s distinguished from conventional law reviews not only by its Madisonian point of view, and by its extreme speediness (published only three or so months after the conclusion of the Court’s last term) but also by its unusual readability and style, pitched to intelligent readers whether or not they are specialists in the law.

Much more than Citizens United

by Walter Olson on September 11, 2014

This week forty-eight senators are seeking to amend the Bill of Rights so as to give the government more power to control campaign speech. While some advocates pretend that the effect of the amendment would “only” be to overturn the Supreme Court’s decision in Citizens United, it would actually go a good bit farther than that. [Jacob Sullum, Reason; George Will; Trevor Burrus at Forbes ("political stunt," yet "terrifying"); related, David Boaz]

Concur: ACLU. Update: measure fails.

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Whichever way you come down on the sidewalk-buffer-zone series of cases, it’s time to retire the wheeze about how the U.S. Supreme Court is supposedly being inconsistent by not inviting protesters up really close to its entrance doors — though the taunt does conceal something of a genuine point about how smaller, poorer organizations are more likely to have to put up with the annoyances and inconveniences of public space and its concomitant public forum doctrine, as they also do when the forums involved are public parks or schools [Eugene Volokh, earlier]

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“Recent opinions have cited ‘facts’ from amicus briefs that were backed up by blog posts, emails or nothing at all.” [Adam Liptak, New York Times, Allison Orr Larsen/SSRN]

More: Jonathan Adler (unhappy role of “Brandeis briefs”).

Making hash of Halbig

by Walter Olson on August 25, 2014

We live in a golden age of Supreme Court coverage, and then there’s Linda Greenhouse [David Henderson on Michael Cannon]

P.S. Likewise on the Canning decision [Nicholas Quinn Rosenkranz]

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In the upcoming case of Yates v. United States, the Supreme Court will decide whether a fisherman can be prosecuted under Sarbanes-Oxley’s prohibition on destroying or concealing “any record, document, or tangible object” to impede an investigation. The records, documents, or tangible objects in question were undersized fish, which Mr. Yates threw overboard instead of bringing back to the dock as instructed by inspectors. Cato has filed an amicus brief urging the Court to rule that Mr. Yates was not adequately put on notice of the reach of “tangible object” to include not just business items such as hard drives, but small marine creatures, lest the law “potentially criminalize an unfathomable range of activities.” [Trevor Burrus, earlier]

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July 15 roundup

by Walter Olson on July 15, 2014

  • “Cato Went 10-1 at Supreme Court This Term” [Ilya Shapiro; on merits cases] Yesterday I spoke to a private policy gathering in Annapolis, Md. with a retrospective on the Supreme Court term, especially its lessons for state government. If you’re looking for a speaker on Court issues, I or one of my colleagues at Cato’s Center for Constitutional Studies may fit the bill;
  • “CrossFit Sues ‘Competitor’ For Revealing Its Injury Rates” [DeadSpin]
  • New Jersey court rules for casino in unshuffled baccarat deck case [Elie Mystal/Above the Law, earlier]
  • Family rescued from 1000 miles offshore plans to sue over nonworking satellite cell phone [ABC 10 News]
  • Tartly worded response to third-party-subpoena demand in Sherrod/Breitbart case [attorney Robert Driscoll]
  • Legal academia: Prof. Bainbridge takes on law-and, empirical legal studies crowds [Bainbridge, TaxProf and reactions] George Leef on reforming law schools [Pope Center]
  • “Uber Agrees to End Surge Pricing During NY Emergencies, And Why That Means You’ll Never Find a Ride” [Gary Leff; Peter Van Doren, Cato]

In more than a dozen states in recent years, governors, legislators or both have arranged through law or regulation to install unions to represent the fast-growing ranks of home health and child care workers, who in many instances are family members receiving a state stipend for looking after their own loved ones. In Harris v. Quinn, a five-member majority of the U.S. Supreme Court ruled that it violates the First Amendment rights of these recipients to require them to pay dues to a union of whose views and activities they may not approve. It did not alter — for now, at least — the 1977 Abood precedent under which full-fledged public workers can be required to pay such dues, instead recognizing a new category of “partial public employees.”

I explore some of the implications in this Cato podcast with interviewer Caleb Brown. Earlier on Harris v. Quinn here.

P.S. A tip-off from SCOTUS on where it intends to take Harris logic? One view from the Left [In These Times] Ruling is rebuke to various governors, including Maryland’s Martin O’Malley, who have employed executive orders to unionize home health carers [Marc Kilmer, MPPI; related, George Leef] Eugene Volokh dissents on the underlying “bedrock” First Amendment issue [Volokh Conspiracy] Will a teacher’s case called Friedrich v. CTA be the vehicle for revisiting Abood? [Jason Bedrick, Cato] And some clues that the first draft of Harris v. Quinn might have overturned Abood, before the majority reconsidered and pulled back [Jack Goldsmith, Sachs, Homer, at On Labor]

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I wrote two posts at Cato on yesterday’s major Supreme Court decisions:

* Why Harris v. Quinn is a bigger deal than Burwell v. Hobby Lobby Stores (spoiler: constitutional vs. statutory interpretation).

* if you like what today’s Supreme Court conservatives just did, thank yesterday’s liberals, and vice versa. By the way, I suspect the abortion buffer-zone cases also fit this pattern. For several decades (down through the 1990s, maybe?) liberals would have generally been the ones relatively sensitive to the rights of street protesters, while conservatives were relatively sensitive to the case for a legitimate police-power role in protecting property owners/tenants from ongoing sidewalk occupation that might deprive them of peaceful enjoyment of their premises.

Earlier on Hobby Lobby here, etc., and on Harris v. Quinn here, etc. Welcome readers from SCOTUSBlog, Steve Stanek/Heartland, etc. And Virginia Postrel makes the case for making contraception over-the-counter, which would largely remove employers from the equation while widening access greatly.

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Hobby Lobby prevails

by Walter Olson on June 30, 2014

The Court has ruled that under RFRA, the Religious Freedom Restoration Act, Congress cannot require closely held corporations to provide contraception coverage as part of ObamaCare when there are readily available alternatives to serve the government’s objectives that would not tread on conscience rights. So said a five-Justice majority led by Justice Alito, including a whittle-it-down concurrence by Justice Kennedy emphasizing the narrowness of the ruling. Why narrow?

* “Closely held” is important — private corporations like Hobby Lobby and Conestoga are closer to surrogates for the owning family than are publicly traded corporations.

* The available alternatives are important — in many closely related situations it won’t be as easy to devise a workaround that serves the government’s policy objectives, and in those situations the claims of conscience may lose out.

* And the basis of the decision in RFRA, that is to say, statutory rather than constitutional law, is important. Congress is free to tinker with RFRA, Obamacare law, or both if public opinion is dissatisfied with the outcome. Although objectors may later raise First Amendment arguments, today’s decision in no way decides those issues.

Earlier coverage here. Cato’s brief is here, and Ilya Shapiro is out with a statement for Cato (“Obamacare’s contraceptive mandate had to [fail under RFRA] because it didn’t show – couldn’t show – that there’s no other way of achieving its goal without violating religious beliefs.”)

P.S. My colleague Julian Sanchez argues that the outcry against Hobby Lobby had almost nothing to do with whether any actual female employees will gain or lose access to contraception, and was instead was almost entirely a matter of cultural signal-sending.

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Cross-posted from Cato at Liberty, a guest post from my Cato colleague Andrew Grossman:

Enough is enough, the Supreme Court ruled today in Harris v. Quinn regarding the power of government to force public employees to associate with a labor union and pay for its speech. Although the Court did not overturn its 1977 precedent, Abood, allowing states to make their workers contribute to labor unions, it declined to extend that principle to reach recipients of state subsidies—in this case, home-care workers who receive modest stipends from the state of Illinois’ Medicaid program but are not properly considered “employees” of the state.

The Court is right that Abood is “something of an anomaly” because it sacrifices public workers’ First Amendment rights of speech and association to avoid their “free-riding” on the dues of workers who’ve chosen to join a union, the kind of thing that rarely if ever is sufficient to overcome First Amendment objections. But Abood treated that issue as already decided by prior cases, which the Harris Court recognizes it was not–a point discussed at length in Cato’s amicus briefAbood was a serious mistake, Harris concludes, because public-sector union speech on “core issues such as wages, pensions, and benefits are important political issues” and cannot be distinguished from other political speech, which is due the First Amendment’s strongest protection. A ruling along those lines would spell the end of compulsory support of public-sector unions, a major source of funds and their clout.

It was enough, however, in Harris for the Court to decline Illinois’ invitation “to approve a very substantial expansion of Abood’s reach.” Illinois claimed that home-care workers were public employees for one purpose only: collective bargaining. But these workers were not hired or fired by the state, supervised by the state, given benefits by the state, or otherwise treated as state workers. And for that reason, Abood’s purposes, which relate only to actual “public employees,” simply do not apply. Were the law otherwise, the Court observed, “a host of workers who receive payments from a governmental entity for some sort of service would be candidates for inclusion within Abood’s reach.”

While Harris is not a watershed opinion that remakes labor law consistent with First Amendment principles, it does put an end to the forced unionization of home-based workers, a practice that has spread to nearly a dozen states and had provided a substantial number of new workers to the labor movement in recent years. Harris also lays the groundwork for a challenge to what it calls “Abood’s questionable foundations.” If recent Roberts Court precedents like Shelby County and Citizens United are any guide, Harris is a warning shot that the Abood regime is not long for this world and that the next case will be the one to vindicate all public workers’ First Amendment rights.

In January Andrew published a thorough preview of the issues of the case. Earlier coverage here.

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Justice Scalia on statutory interpretation, dissenting in Aereo [via Legal Ethics Forum]:

It is not the role of this Court to identify and plug loopholes. It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes. Congress can do that, I may add, in a much more targeted, better informed, and less disruptive fashion than the crude “looks-like-cable-TV” solution the Court invents today.

What a morning at the Supreme Court. Unanimous free-speech ruling that Massachusetts went too far with a law creating a 35-foot zone banning protests on public streets outside abortion clinics. [McCullen v. Coakley, SCOTUSBlog case page] Unanimous 9-0 ruling rebuking the Obama administration’s broad claims of recess appointment power, though the Court split 5-4 on rationale. [NLRB v. Noel Canning et al, SCOTUSBlog case page]

This now makes about a dozen cases in which the Supreme Court has *unanimously* rejected Obama administration claims of broad government power. In case after case, the Department of Justice can’t even win the votes of the President’s own appointees, Elena Kagan and Sonia Sotomayor. This is an extraordinary rebuke.

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