Another unanimous loss for Obama, another trip to the dunking booth for the Equal Employment Opportunity Commission: my new Cato post on last week’s Supreme Court decision on the proper standard for awarding attorneys’ fees to prevailing defendants in Title VII employment discrimination cases. Justice Thomas has it right in his concurrence: the ruling at hand is all well and good, but the Court needs to go further and rethink precedents that bend over backward to give prevailing employment plaintiffs a set of fee entitlements that it does not allow to prevailing defendants (& welcome SCOTUSBlog readers).
- Cato files amicus in “hydroponic gear + discarded tea leaves = raid their house” case [Ilya Shapiro and Randal John Meyer, earlier on Harte v. Johnson County, Kansas Commissioners]
- Call off contest for most wrongheaded op-ed about SCOTUS vacancy, clear winner has emerged [Gregory Diskant]
- “If police tell you about a good body shop after an accident, beware this one thing.” [@clickbaitSCOTUS on Ocasio v. U.S.]
- “Maryland Court Suppresses Evidence Gathered By Warrantless Stingray Use” [Tim Cushing, TechDirt]
- Evenwel v. Abbott: “Supreme Court Leaves Meaning of ‘One-Person, One-Vote’ Unclear” [Ilya Shapiro/Cato, earlier]
- Ripeness is all: Thomas/Kennedy dissent in Arrigoni Enterprises v. Town of Durham will excite inverse taking mavens [Gideon Kanner]
- Some reactions to Donald Trump’s release of a list of 11 judges he’d consider for SCOTUS nominations [Ilya Shapiro, Volokh Conspiracy quartet of Eugene Volokh, Jonathan Adler, Orin Kerr, Ilya Somin; Justice Don Willett‘s online humor has not spared Trump]
Do you think Donald Trump is the first U.S. politico to menace publishers over bad coverage? Not even close. My new Cato piece cites a few examples from a depressingly long history. Plus: reprinted at Newsweek.
Bonus: Sen. Sherman Minton (D-Ind.) who put forth the remarkable proposal to make it “a crime to publish anything as a fact anything known to be false,” and who had led a Senate committee’s investigation of the Gannett newspaper chain over its (then) Republican-leaning politics, was later nominated by President Harry Truman to be an associate justice on the U.S. Supreme Court, where he served for seven years and became a leading exponent of judicial deference to the executive branch.
The Citizens United case was correctly decided, says Michael Kinsley. And he is right. [Vanity Fair]
All minimum wage laws are bad economics, but Seattle’s new law adds its own potentially unconstitutional twist: harsher terms for out-of-state businesses [Ilya Shapiro and Jayme Weber, Cato]
- In Tyson Foods v. Bouaphakeo, Kennedy preserves statistical sampling as a way of proving classwide liability; liberal side would have prevailed even with Scalia on court [Mark Moller/PrawfsBlawg, Daniel Fisher, Paul Karlsgodt]
- Cato’s amicus brief suggests nifty administrative-law fix by which Court could excuse Little Sisters of the Poor without stoking culture war [Ilya Shapiro]
- Oral argument in case on whether RICO racketeering law applies extraterritorially [Daniel Fisher, first and second posts; RJR Nabisco v. European Community]
- Luis v. U.S.: oddly split Court restricts freezing of untainted assets when needed to pay for criminal defense [Jonathan Adler, Scott Greenfield]
- Caetano: Court tells Massachusetts to revisit its opinion that Second Amendment cannot apply to stun guns [Jonathan Adler, Eugene Volokh]
- As predicted, Court won’t take up weak claim by Oklahoma and Nebraska that Colorado’s pot law harms them [Tim Lynch and Adam Bates]
- Amicus wranglers, amicus whisperers; friends of court seen to display flock, herd, pack behavior [Adam Liptak, New York Times]
Abood abides: a 4-4 Supreme Court split leaves in place earlier precedent providing that public employees can be required to pay union “agency fees” spent on activities of which they may not approve. Cato reactions: Trevor Burrus (“The lack of a blockbuster decision in Friedrichs is one of the most significant immediate consequences of Scalia’s death”), Jason Bedrick (“Not only do agency fees violate the First Amendment rights of workers by forcing them to financially support inherently political activities with which they may disagree (as my colleague Ilya Shapiro and Jayme Weber explained), but the unions often negotiate contracts that work against the best interests of the workers whose money they’re taking.”). Bonus: Charles C.W. Cooke (NEA president’s “Orwellian” words on case). Earlier here.
- Soon after reports that World Health Organization wants to keep kids from viewing classic films depicting smoking, purported class action lawsuit seeks damages from Hollywood for not instituting such a ratings policy [Courthouse News]
- UK police arrest another man over dumb political tweet, defend our First Amendment to make sure such things don’t happen here in US [Telegraph] “How about we ‘defend European values’ by not arresting people who say stupid things?” [Brendan O’Neill, Spectator]
- The monocle that blinked: New Yorker magazine now often found on wrong side of free speech issues [Jamie Kirchick/Commentary, earlier]
- What does Donald Trump really think about suing the press? Ann Althouse goes line by line through what he told the Washington Post at an editorial board meeting [earlier here, here, etc.]
- High court should step in against law regulating speech regarding ballot measures by small, low-budget groups [John Kramer, Institute for Justice on Justice v. Hosemann] Paul Sherman of Institute for Justice joins Trevor Burrus and Aaron Ross Powell for a discussion of the First Amendment, political and occupational speech [Libertarianism.org]
- Merrick Garland’s record on First Amendment issues [Ronald Collins] State of play in the Supreme Court on First Amendment cases this term [same; published before 4-4 outcome in Friedrichs]
- Washington Post “Fact Checker” Glenn Kessler awards Three Pinocchios to prominent Senate Democrats for claiming their body is constitutionally obligated to act on a Supreme Court nomination [earlier]
- George Will argues that even though the Constitution does not constrain them to do so, there are strong prudential reasons for Senate Republicans to give nominee Merrick Garland a vote [Washington Post/syndicated] A different view from colleague Ilya Shapiro [Forbes]
- Garland is known in his rulings for deference to the executive branch; maybe this president felt in special need of that? [Shapiro on Obama’s “abysmal record” heretofore at the Court; Tom Goldstein 2010 roundup on Garland’s jurisprudence, and John Heilemann, also 2010, on how nominee’s style of carefully measured liberal reasoning might peel away votes from the conservative side]
- Litigants’ interest in controlling their own rights form intellectual underpinnings of Antonin Scalia’s class action jurisprudence [Mark Moller, first and second posts] “With Scalia gone, defendants lose hope for class action reprieve” [Alison Frankel/Reuters]
- OK for private law firms hired to collect state debt to use attorney generals’ letterhead? Sheriff v. Gillie is FDCPA case on appeal from Sixth Circuit [earlier]
- Murr v. Wisconsin raises question of whether separate incursions on more than one parcel of commonly owned land must be considered together in determining whether there’s been a regulatory taking [Gideon Kanner]