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]
Posts Tagged ‘Supreme Court’
Amicus briefs smuggling in “facts” that aren’t so
“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
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]
“How Destroying Fish Is Not Like Destroying Financial Records”
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]
July 15 roundup
- “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]
Podcast: home carers not obliged to pay union dues
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]
Hobby Lobby and Harris
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.
Hobby Lobby prevails
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.
Guest post, “Harris v. Quinn: A Win for Workers’ First Amendment Rights”
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 brief. Abood 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.
“It is the role of good lawyers to identify and exploit [loopholes]”
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.