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]
In addition to the links yesterday on the nomination of D.C. Circuit Chief Judge Merrick Garland to the vacancy on the Supreme Court, here’s Ilya Somin: “No one has better explained the justification for senatorial consideration of judicial philosophy than then-Senator Obama in his 2006 speech justifying his opposition to the nomination of Justice Alito (which Obama had previously tried to prevent from even coming to a vote, by using the filibuster)” While there is good reason for Republicans to table the Garland nomination for now, Somin writes, they should keep in mind that Garland is “preferable to what we might well get in the likely event of a Hillary Clinton victory” — and also that “it would be irresponsible to leave the door open for a Trump nomination.”
And more from the other Ilya, Ilya Shapiro, on the nominee in a CNN roundtable:
From my own perspective, Garland has shown an alarming amount of deference to the government in his years on the important D.C. Circuit, which handles appeals from administrative agencies. I also fear that he won’t represent the check on ever-expanding federal power and executive actions to the same extent as Scalia. And if you’re a civil libertarian, his solicitude for law enforcement makes him much less appealing than other judges who had been under consideration.
More (edited): Sorry, email-blast progressives: the Senate has no constitutional duty to vote on a Supreme Court nominee [Michael Ramsey constitutional arguments]. On the other hand, Vikram Amar criticizes the Senate not on the untenable constitutional argument but because, he says, the no-hearings-no-votes stance goes beyond a prudent or appropriate political response to the Democrats’ earlier acts of nomination obstruction.
The leadership of the U.S. Senate has announced that it will not be holding hearings or votes on a nominee for the Supreme Court vacancy opened by the death of Antonin Scalia, and it has the votes to make this stick. All of which makes it a little odd that some publications have been filling acres of news space with biographies of long-shot hopefuls destined not to be picked for a vacancy that is itself likely not to be filled, at least not anytime soon. (Of course, it does advance the White House’s political strategy to maximize press coverage in this way.) Jonathan Adler points out, as have others, that the Senate’s advise-and-consent role does not generate any constitutional duty to consider a nominee, however one weighs the prudential and political considerations for doing so. And Adler also points out that the Senate majority’s “No Hearings, No Votes” position makes it even more inappropriate than usual for some conservatives to start launching smear campaigns against possible liberal names, as by “tarring potential nominees because they once represented unsavory clients” — aside from the fact that (as both conservatives and defenders of the law should know) such smear campaigns are not good for the soul.
More/update: President Obama has now nominated D.C. Circuit chief judge Merrick Garland. Commentary by my colleague Ilya Shapiro (“Chief Judge Garland is assuredly a liberal vote on the most controversial, culture-war issues, but he’s just as surely the most moderate Democratic-leaning jurist under consideration on cases that fly under the radar.”); Stuart Taylor (“I predict that he will be confirmed — after the election, assuming Hillary wins, and after the lame-duck R’s have about 3 seconds to consider their options.”), Jonathan Adler (also: “His record on the D.C. Circuit is one of deference to the government across a wide range of issues,”), Trevor Burrus, and Jim Copland.
It isn’t especially onerous for the Supreme Court to operate with eight Justices, as we know from earlier vacancies and recusals, note Josh Blackman and Ilya Shapiro [Wall Street Journal] History of election-year SCOTUS nominations and confirmations doesn’t prove what some liberals imagine it does [Roger Pilon; Jonathan Adler and follow-up]
Plus: Wouldn’t it be nice if every Supreme Court nominee were asked to name something he or she thinks is a good idea yet unconstitutional, or, conversely a bad idea that is constitutional? [Trevor Burrus]
In a case involving Murphy Oil, the National Labor Relations Board contends that “a mandatory arbitration provision violates the National Labor Relations Act. That has been the position of the NLRB for some time now, notwithstanding almost universal rejection by the courts.” The Fifth Circuit, unsurprisingly, joined other precedent and upheld the employer. Until just a short time ago, given a Supreme Court on which Justice Antonin Scalia had penned strong opinions in favor of freedom to contract in favor of arbitration as a choice, “employers would not have been terribly concerned if the NLRB had appealed.” But now? [Michael Fox, Jottings By an Employer’s Lawyer]