The more you know about the early 20th Century progressive movement, the less you will probably love it. My colleague Trevor Burrus explores the story of Buck v. Bell, the 1927 case in which a eugenics-influenced U.S. Supreme Court approved a Virginia compulsory sterilization law.
- More views on Article V convention to propose constitutional amendments [Glenn Reynolds/USA Today, Mark Pulliam/Liberty and Law, Ashley Balcerzak, Center for Public Integrity with emphasis on conservative-vs.-conservative battles; my take]. I may be debating the idea in St. Louis March 22, watch for more details;
- As part of wrongheaded efforts at tribalization of native Hawaiians, state of Hawaii keeps trying to hold racially discriminatory elections [Ilya Shapiro/Cato, earlier here, etc.]
- Taking drug preemption case would enable Court to clarify application of Wyeth v. Levine [WLF]
- “The Rise of Judicial Review for Economic Liberty” [John McGinnis]
- “Supreme Court To Rule on ‘Implied Certification’ False Claims Act Theory” [Beck quoting James Martin, Colin Wrabley, M. Patrick Yingling of Reed Smith on Universal Health Services, Inc. v. United States ex rel. Escobar]
- Court should review Oklahoma license plate case in which Tenth Circuit applied less protective “symbolic speech” standard [Ilya Shapiro and Jayme Weber, Cato]
- “The Tetzlaff Aftermath: Discharging Student Loans In Bankruptcy Might Be Easier Than We Thought” [Shannon Achimalbe, Above the Law]
Can a defendant in a class action moot the whole proceeding by offering the named plaintiff the full value of his claim, thus “picking him off”? No, or at least not in the case at hand in Campbell-Ewald v. Gomez, the Supreme Court ruled on Wednesday by a 6-3 margin. I discuss the case in a new post at Cato. More, Alison Frankel/Reuters, Howard Wasserman/Prawfs; earlier here and here]
My colleague Ilya Shapiro thought things went well for the plaintiffs’ side in yesterday’s oral argument in the much-watched case over the First Amendment and teachers’ union dues, Friedrichs v. California Teachers Association. Others generally agree. Commentary before the argument from Jason Bedrick and Trevor Burrus, and afterward from Lyle Denniston (and more SCOTUSBlog).
On Jan. 11, the Supreme Court hears what may well be the most important case of the term. In Friedrichs v. California Teachers Association, 10 teachers have challenged a state requirement that they support political causes with which they disagree and that hurt their students.
At issue is a kind of law that exists in 25 states which forces public-sector workers either to join a union or pay an amount that covers the cost of the union’s collective bargaining. For California teachers, that means annual dues of about $1,000 or “agency fees” of about two-thirds that amount.
— Ilya Shapiro and Jason Bedrick, Orange County Register. More: Shapiro and Jayme Weber, The Federalist; Richard Epstein, Robert Alt first, second (empirical evidence that unions can do well even when nonmembers not obliged to pay agency fees), third (stare decisis) posts, George Will. Earlier on Friedrichs and its predecessor cases Harris v. Quinn and Knox v. SEIU. A contrary view: New York Times editorial.
- Supreme Court agrees to review CRST Vans Expedited v. EEOC (Eighth Circuit) on standard for prevailing-party fee awards in EEOC cases, could mean help for defendants against overzealous government lawyering (and thanks for quote) [Sean Higgins, Washington Examiner, earlier here and here]
- 6-3 win for arbitration and freedom of contract in DirecTV case [Deborah LaFetra/PLF, Daniel Fisher, ABA Journal] WSJ editorial: Bravo to Justice Breyer for upholding as precedent what he’d earlier dissented from on substance [Texans for Lawsuit Reform reprint]
- OK to choke off legal defense by freezing all assets before trial, even if not criminally obtained? [Radley Balko]
- South Carolina $124 million penalty against Risperdal maker should be recognized as violating Excessive Fines clause [Ilya Shapiro and Randal John Meyer, Cato]
- “Supreme Court will review state laws making it a crime to refuse blood-alcohol tests” [ABA Journal, Reason]
- Helpless against the administrative state: revisiting SCOTUS’s awful 1944 Yakus case [James Conde and Michael Greve, SSRN via Michael Greve, Law and Liberty]
- New Akron Law Review symposium on class action jurisprudence of Roberts Court [Paul Karlsgodt]
The Washington Post humors the super-silly liberal fantasy of impeaching Justice Scalia for discussing the affirmative action mismatch argument, an argument that 1) was briefed by lawyers in the case at hand, Fisher v. University of Texas; 2) has come up in the Court’s earlier racial preference jurisprudence and been endorsed by fellow Justice Clarence Thomas; 3) has been aired extensively in places like the Washington Post itself without the ceiling caving in. [Valerie Strauss, Washington Post “Answer Sheet”]
Of course the Washington Post itself would be a better newspaper if its writers on relevant beats took the time to read the paper’s own Volokh Conspiracy, which this week has been hosting a series of guest blog posts by Prof. Rick Sander, best known proponent of the mismatch theory.
Some have questioned whether Scalia was proceeding down a path irrelevant to the Court’s eventual ruling on constitutionality. Here is one possible source of relevance, per James Taranto’s discussion: “Kennedy, unlike Scalia and Thomas, endorsed [in an earlier university racial preference case] the premise that those benefits [specifically, educational benefits obtainable from greater diversity] constitute a “compelling interest” that would justify preferences if the other components of the strict-scrutiny test can be met.” Kennedy’s approach leaves open the possibility that this constitutional justification could be refuted by an empirical showing that the net benefits add up to less than a “compelling interest.”
Yesterday the Supreme Court (ruling only on a narrow procedural issue, not the merits) gave the go-ahead to a suit challenging Maryland’s outlandish Congressional districting map, and three other pending merits cases indicate the Court’s renewed interest in redistricting and allied topics. I’ve got a post at Cato tying together the latest developments with my own work on redistricting reform in Maryland (earlier on which). Meanwhile, my colleague Ilya Shapiro counters the editors of USA Today on the just-argued case of whether population equality among districts should be based on numbers of persons, including such groups as children and non-citizens, or on numbers of persons eligible to vote, allowing him a rare chance to work the old term “rotten boroughs” from parliamentary history. More on the Evenwel oral argument from Ilya and from Andrew Grossman.
- Supreme Court has blocked for now “an election with racial qualifications that could eventually establish a new government for so-called ‘native Hawaiians.'” [Ilya Shapiro/Cato, earlier on Hawaiian tribalization here, here, etc.]
- Some scholars seem a bit evasive about historic British use of gun control to disarm minority religionists [David Kopel]
- Occupational licensure and Connecticut teeth-whitening case: does mere protection of incumbents against competition count as “rational basis” for government action? [Timothy Sandefur, Cato]
- Class actions: some predict Court not likely to do much more than tinker [Alison Frankel, Paul Karlsgodt]
- Update: “California woman who bought Eurail pass in US can’t sue here for Austrian accident, SCOTUS says” [ABA Journal, earlier]
- Supreme Court should defend interstate commerce against extraterritorial Colorado law providing that electric power entering state must have been generated in certain ways [Ilya Shapiro and Randal John Meyer]
- “Old, cryptic, or vague” 14th Amendment: Judge Posner can’t have his Constitution and eat it too, thinks Josh Blackman.
- “There is nothing in the Constitution that …even hints that the president’s power expands because Congress won’t pass the legislation he advocates.” [David Bernstein interview with Josh Blackman about Bernstein’s new book “Lawless,” on Obama administration vs. constitutional limits more from Bernstein on book]
- “Will the Supreme Court End Affirmative Action? A Preview of Fisher v. University of Texas at Austin on the Eve of Oral Argument” [Cato event Dec. 7 with Andrew Grossman, John Paul Schnapper-Casteras, Gail Heriot, Richard Lempert, and Wallace Hall, moderated by Ilya Shapiro]
- Theme of this year’s Federalist Society lawyers’ convention was Congress, videos of related panels [originalist views of Congress, Congressional dysfunction, deference and delegation, prospects for getting legislative branch to reclaim lawmaking power]
- Certiorari petition asks SCOTUS to review dischargeability of law school debts in bankruptcy [BNA; Tetzlaff v. Educ. Credit Mgmt. Corp.]
- At Cato’s Constitution Day, panels looked back at an eventful SCOTUS term [Cato Policy Report]
- Common law vs. statutes: Richard Epstein on Spokeo v. Robins oral argument [Hoover] Must plaintiffs show they actually suffered harm? [Daniel Fisher]
- No, the Constitution doesn’t let feds cancel Redskins trademark as offensive [Kristian Stout, Truth on the Market; Ilya Shapiro]