Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Supreme Court’

Judge Brett Kavanaugh picked for Supreme Court

Brett Kavanaugh is a stellar pick, whose name would have been at or near the top of any list of outstanding Republican nominees for the high court. As a longtime judge on the D.C. Circuit he has authored nearly 300 opinions, many in big cases hinging on constitutional issues such as the allocation of powers. Like Chief Justice John Roberts, whom in many ways he resembles, he has unusually close ties already with his eight new colleagues: his decisions on the appeals court have fared exceptionally well on review by the higher court and are often cited as authority there, and he acts as a “feeder judge” sending clerks to Justices across the Court’s ideological spectrum. His qualities of temperament and character are widely respected on all sides, and he is known for advancing diversity among the influential ranks of Supreme Court clerks by recruiting law graduates from many backgrounds.

Yale lawprof Akhil Amar is out with “A Liberal’s Case for Brett Kavanaugh” in the NYT. He writes:

The nomination of Judge Brett Kavanaugh to be the next Supreme Court justice is President Trump’s finest hour, his classiest move. Last week the president promised to select “someone with impeccable credentials, great intellect, unbiased judgment, and deep reverence for the laws and Constitution of the United States.” In picking Judge Kavanaugh, he has done just that.

In 2016, I strongly supported Hillary Clinton for president as well as President Barack Obama’s nominee for the Supreme Court, Judge Merrick Garland. But today, with the exception of the current justices and Judge Garland, it is hard to name anyone with judicial credentials as strong as those of Judge Kavanaugh.

Jonathan H. Adler on Kavanaugh’s extensive record striking down federal agency action (at least 75 times, according to the White House handout), including several major cases in which his rulings were upheld by the high court on appeal:

Judge Kavanaugh takes administrative law very seriously, and he makes agencies do their homework. As much as any other judge on the D.C. Circuit, he makes sure that agencies act within the scope of the authority they have been delegated by Congress, that they follow the procedures required by the APA, and that they adequately justify their decisions. This has often led to decisions invalidating agency action — both in challenges brought by supporters and opponents of regulation — but Judge Kavanaugh is not an anti-regulatory zealot. Where agencies play by the rules, he has upheld their actions against legal challenge, even where the actions in question may seem unreasonable or unfair.

Plus: Christopher Scalia Twitter thread on why the “theory that Trump picked him because he’d protect the president from indictment” is “nonsense”; Tony Mauro; Ken at Popehat on Kavanaugh’s (good) free-speech record. And Andrew Grossman on the Cato Daily Podcast praises Kavanaugh’s record on the D.C. Circuit, especially his willingness to hold federal agencies to the law rather than allow variance in the name of ambiguity or deference.

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Awaiting a Supreme Court nominee

The White House has indicated that President Trump will announce a nominee for the Supreme Court vacancy Monday evening. Jonathan Adler breaks it all down at Volokh Conspiracy as does David Lat in a series of posts (sample: feeder judge Brett Kavanaugh “sends clerks to almost all the justices, on both sides of the aisle.”) Other resources while we wait:

  • Factually rich cheat sheet with links to writings and opinions of judges thought to be on the list [TIFIS]
  • The New Civil Liberties Alliance has evaluated the likely picks on the basis of their posture toward the powers of the administrative state. Chris Walker at the Yale Journal on Regulation examines related issues of their views on administrative law. And the Institute for Free Speech on records on free expression;
  • Judge Raymond Kethledge’s concurrence in the Cathedral Buffet case, with observations about government scrutiny of religious beliefs and the First Amendment’s Free Exercise Clause, is getting some attention. I wrote it up at the time here and at Cato at Liberty;
  • Hmm. “[Amy Coney] Barrett defended the Supreme Court’s current approach in cases dealing with economic regulation, in which the scales are tipped in favor of lawmakers via the highly permissive standard of judicial review known as the rational-basis test.” [Damon Root, Reason]
  • Ilya Shapiro has some kind things to say about another Sixth Circuit judge on many shortlists, Amul Thapar. What got my attention as a confirmed legal formalist is that Judge Thapar threw a case out of court for being one cent short of federal jurisdiction. As I argued way back in The Litigation Explosion, bright-line rules are generally a good thing and jurisdiction, especially, should not be subject to rules of close-enough. This recent Michigan Law Review piece by Judge Thapar and Benjamin Beaton, reviewing a new book by Judge Richard Posner has more on the virtues of formalism and is eminently worth reading;
  • Highlights of Kevin Cope’s ideological scoring of the judges for the Washington Post’s Monkey Cage: likely picks other than Thapar are clustered closely together, all less conservative than Justice Alito’s Third Circuit record when he was picked; Thapar gets a more moderate rating but his tenure as an appeals judge has been very brief. Note also that Merrick Garland, much promoted as centrist two years back, scores well to the left of the pre-appointment records of Ruth Ginsburg and Sonia Sotomayor.
  • You can listen to me briefly discussing the possibilities on the Hartford-area Ray Dunaway show here.

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Obergefell overturned?

My opinion piece in Monday’s Wall Street Journal offers eight reasons why, no matter who is the next justice, the Supreme Court will not overturn Obergefell v. Hodges, its 2015 same-sex marriage decision.

2. In deciding whether to respect stare decisis and follow a precedent deemed wrongly decided, justices apply standards that can appear wobbly and uncertain. But whatever else is on their minds, they always claim to take seriously the practical dangers of upending a decision on which many people have relied.

Few legal strokes would be as disruptive, yet fully avoidable, as trying to unscramble the Obergefell omelet. Large numbers of marriages would be legally nullified in a moment, imperiling everyday rights of inheritance, custody, pensions, tax status and much more. These effects would hit on day one because an earlier generation of social conservatives managed to write bans on same-sex marriage and equivalents into many state constitutions. Those bans would prevent elected officials from finding legal half-measures to avert massive dislocation for innocent persons.

The piece is paywalled, but Jonathan Adler has a write-up briefly summarizing some of its other points. I’ve discussed Pavan v. Smith here and Masterpiece Cakeshop here.

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A look at Justice Anthony Kennedy’s record

Roger Pilon and I join Caleb Brown in This Cato podcast assessing the 30-year tenure of Justice Anthony Kennedy, who usually reached sound outcomes but often not by the reasoning we might have liked. Among the topics discussed: the gay rights cases, Kennedy’s change of tune on enumerated powers, and his authorship of Citizens United.

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Supreme Court roundup

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Timbs v. Indiana: does Excessive Fines clause apply to the states?

The Supreme Court has agreed to take up the question of whether the Bill of Rights’s Excessive Fines Clause applies to the states [Eugene Volokh] Because the case involves a state’s claim to a seized vehicle, it might also permit the Court to address issues of the constitutionality of asset forfeiture [Ilya Somin, Nick Sibilla, IJ petition for cert in Timbs v. Indiana]

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Anthony Kennedy retires

My new opinion piece for the New York Post: “Even after a king we regard as benign steps down, we might want to reflect whether kingship is a good thing….Both Kennedy and O’Connor were famously reluctant to lay down clear rules for future cases, preferring to leave options open for the exercise of their sense of fairness.

“Yet a sense of fairness provides no steady and stable basis for future cases. In the old courts of equity run by England’s Lord Chancellor, it came to be said that ‘Equity is as long as the Chancellor’s foot.’ As John Selden explained in the 17th century: ‘One Chancellor has a long foot, another a short foot, a third an indifferent foot: ’tis the same thing in a Chancellor’s conscience.'”

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Janus v. AFSCME will advance workers’ rights. It won’t end public employee unions.

In yesterday’s Janus v. AFSCME Council 31, the Supreme Court ruled in an opinion by Justice Samuel Alito that the practice of requiring public employees to pay “agency fees” to unions to engage in collective bargaining, including the pursuit of demands concerning workplace policy that may be antithetical to the worker’s own views, is a violation of the First Amendment’s restrictions on compelled speech. The ruling was 5-4 along conservative-liberal lines.

In her dissent on behalf of the four liberals, Justice Elena Kagan outlined the so-called free-rider problem that has been said to justify requiring public employees to pay union fees [citation to 1991 paper omitted]:

Employees (including those who love the union) realize that they can get the same benefits even if they let their memberships expire. And as more and more stop paying dues, those left must take up the financial slack (and anyway, begin to feel like suckers)—so they too quit the union. And when the vicious cycle finally ends, chances are that the union will lack the resources to effectively perform the responsibilities of an exclusive representative—or, in the worst case, to perform them at all. The result is to frustrate the interests of every government entity that thinks a strong exclusive-representation scheme will promote stable labor relations.

The free-rider argument is a weak one on its own terms, even if you leave aside Justice Alito’s observation for the majority that free-rider economic arguments are ordinarily not expected to override First Amendment concerns. To begin with, unions not only still exist in the U.S. states (a majority) that have enacted “right to work” laws curbing agency fees, but sometimes wield much political clout. Janus does not spell a death knell for public unions that provide their members with value.

Moreover, as Cato scholars Trevor Burrus and Reilly Stephens have pointed out, European unions have developed along somewhat different institutional lines: they rely less on models of exclusive bargaining representation and more on collective social representation and solidarity (often linked to direct involvement in provision of fringe benefits and other valued services).  Far from being weakened by their departure from the “American” model of exclusive collective representation, they seem to be in many ways more formidable than are American unions.

Expect state and local governments that are closely allied with the political interests of unions to scramble now to enact measures meant to evade Janus. Here is a description of what just happened in California, from Joel Fox at the political site Fox and Hounds:

SB 866 would cement union control over access to individual employee decisions on whether to continue paying union dues, should mandatory agency fees be deemed unconstitutional. …Key elements of the bill include:

  • Requiring for any school teacher, state firefighter, college professor, prison guard, environmental regulator, or any of the hundreds of other classes of state and school employees who may wish to reduce or eliminate their mandatory union dues, that they make this request exclusively to the union rather than to their employer.
  • Unions would not be required to provide the actual authorizations for dues deduction to the school board or State Controller, but instead would merely certify to the public agency’s payroll department as to who is or is not paying union dues. Public employers must rely on the unions’ representations regarding dues deductions.
  • Unions would indemnify public employers over claims made by individual employees for deductions made in reliance on union representations.
  • Employees would be prohibited from contacting their employer directly regarding union dues deductions.
  • A public employer may not send mail or email to its employees, or provide an oral presentation, about their right to join or refrain from joining a union, unless the employer facilitates delivery of similar messages from the union.
  • Government employee unions currently have access to orientation sessions for new employees. This bill would limit disclosure of the date, time and place of these sessions to the employees and unions only. Members of the public and taxpayers would be kept in the dark about meetings of public officials.

If signed by Governor Brown, the measure would take effect immediately.

The California bill was rushed through both houses in quickstep fashion as a budget trailer bill and was signed by Gov. Brown yesterday. Note, however, that section VII of Alito’s opinion, by requiring affirmative consent for fee withholding rather than allowing assumed waiver, could foil some of the scheme above.

Note also our March post on how unions may be planning to reclassify some workers from public to private in order to get around Janus, including workers who had earlier been reclassified from private to public to benefit the same unions.

[cross-posted and expanded from Cato at Liberty] More: earlier, Roger Pilon, Ilya Shapiro (“Today’s decision at long last remedies this violation of all workers’ rights to the freedom of speech and association”), Cato podcast with Caleb Brown and Trevor Burrus.

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Supreme Court upholds travel ban

The Supreme Court yesterday in a 5-4 decision upheld the Trump administration’s travel ban, citing the relevant statute’s extreme deference toward executive branch national security determinations on the entry of persons, as well as the Court’s own historic deference toward executive branch discretion in this area.

The four liberal justices dissented, but did not agree on reasoning. Breyer and Kagan went for a low-key, minimalist fix — keep the injunction in place while ordering additional factfinding about implementation — that might have begun as an effort to craft a narrow decision conservatives would join. Only two Justices, Sotomayor and Ginsburg, went along with the arguments that persuaded the Ninth Circuit judges below.

Both dissents, however, stressed the significance of improper animus / discrimination against religious belief, the same issue championed by the Court’s conservatives in Masterpiece Cakeshop earlier this month.

Legal buffs may be interested in Thomas’s concurrence in which he pronounces universal injunctions “legally and historically dubious.”

Finally, and of interest to all Americans, the Court through its majority opinion officially repudiated Korematsu v. U.S. (1944), the decision in which it once upheld forced wartime internment of Japanese-Americans. Korematsu had never been officially repudiated until today.

The podcast above with Caleb Brown and Ilya Shapiro is at this link. Earlier here and here. Other views: Eugene Volokh, Ilya Somin. More: Roger Pilon.

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Keeping an overdue appointment with the Appointments Clause

Caleb Brown interviews Trevor Burrus and me for the Cato Daily Podcast on Lucia v. SEC, Thursday’s Supreme Court case on the Appointments Clause and administrative law. Crossing to join with the conservatives, Justice Elena Kagan wrote a narrowly tailored opinion invalidating the method by which the Securities and Exchange Commission had appointed its five administrative law judges at the time of the dispute (it has since fixed its appointment method). The majority opinion carefully sidesteps the issue of how ALJs may properly be removed; Justice Breyer, who largely concurred with the result on separate grounds, explored some of those issues in his opinion. See also Ilya Shapiro on June 21 as “government structure day” at the Supreme Court, and with more on the merits. Related: Federalist Society forum on Michael Rappaport proposal for replacement of ALJs with Article III judges.

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