David B. Rivkin, Jr., and Andrew M. Grossman practice appellate litigation in the Washington, D.C., office of Baker & Hostetler LLP. They filed an amicus brief in support of certiorari in Friedrichs v. California Teachers Association on behalf of the Cato Institute, where Mr. Grossman is an adjunct scholar.

Whatever the fate of mandatory “fair share” payments that nonmembers are often required to make to fund public-sector unions’ collective bargaining activities, Friedrichs will likely mark the end of requirements that dissenting workers take action to “opt out” of funding public-sector unions’ political and ideological activities, the subject of the second question that the Court agreed to consider. Although less prominent than the forced-payments issue, ending opt-out requirements would correct a serious anomaly in the Court’s First Amendment jurisprudence, one that facilitates tens of millions of dollars annually in union political spending of funds obtained through inertia, trickery, and coercion. Continue reading »

Thursday round-up

By on Aug 27, 2015 at 9:47 am

As Lyle Denniston reported yesterday for this blog, Nebraska has filed a petition for rehearing en banc in the Eighth Circuit, asking the full court to declare a challenge to its ban on same-sex marriage moot and thereby “keep seven Nebraska couples from pursuing their case further and seeking to recover the money they spent for their lawyers’ fees.”  Howard Wasserman weighs in on the rehearing request at PrawfsBlawg. Continue reading »

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Catherine Fisk is the Chancellor’s Professor of Law at the University of California, Irvine School of Law.

Friedrichs v. California Teachers Association presents two issues: (1) whether to overrule Abood v. Detroit Board of Education, and hold that the First Amendment prohibits school districts and teachers’ unions from requiring teachers to pay the union their fair share of the cost of union representation services; and (2) whether the First Amendment requires any government employee who wishes to join a union to opt into membership rather than, as the law currently requires, to opt out.  The Court ought not decide either issue because both depend on facts not in the record.  If it does decide the case, it cannot rule for the petitioners without substantial violation of the First Amendment rights of unions and their members. Continue reading »

The state of Nebraska, arguing that the Supreme Court’s June ruling opening the right to marry to same-sex couples settled the issue nationwide, urged a federal appeals court on Tuesday to reopen that state’s case and keep seven Nebraska couples from pursuing their case further and seeking to recover the money they spent for their lawyers’ fees.

Nebraska is one of several states that previously banned same-sex marriage that have been trying to persuade lower federal courts that the Justices’ ruling in Obergefell v. Hodges made all similar cases moot — that is, no longer live disputes.  Couples who sued in many states are now pursuing further orders, including an award of lawyers’ fees.  In response, Nebraska’s lawyers have now gone further than other states have, seeking en banc review of the dispute by the U.S. Court of Appeals for the Eighth Circuit.

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Wednesday round-up

By on Aug 26, 2015 at 7:32 am


  • Jessica Gresko of the Associated Press reports that both same- and opposite-sex couples are using excerpts from Justice Anthony Kennedy’s opinion in Obergefell v. Hodges, holding that states must allow same-sex couples to marry, in their wedding ceremonies.
  • At Cato at Liberty, Ilya Shapiro and Josh Blackman weigh in on the challenge by the Little Sisters of the Poor to the Affordable Care Act’s birth-control mandate, in which Cato recently filed an amicus brief; they urge the Court to consider an additional question – whether the responsible departments of the federal government “have the interpretive authority and ‘expertise’ to resolve this ‘major question’ of profound social, ‘economic and political significance.’”

If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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William Messenger is an attorney with the National Right to Work Legal Defense Foundation.  He argued on behalf of the petitioners in Harris v. Quinn.

The First Amendment generally forbids the government from forcing citizens to support a private organization’s speech and expressive activities. Yet, roughly forty years ago, the Supreme Court held in Abood v. Detroit Board of Education that the government can force public employees to financially support some types of union speech, but not other types. Specifically, Abood held that employees could be forced to subsidize union collective bargaining with the government, but not union political activities intended to influence government policy. Continue reading »

Ann C. Hodges is a Professor of Law at the University of Richmond School of Law.

As every first-year law student learns, the First Amendment is not absolute because the government can restrict speech with adequate justification. When the government acts as employer, the burden of justification is reduced because it has a strong interest in controlling the speech of its employees to provide effective service to the citizens.

The case of Friedrichs v. California Teachers Association involves a First Amendment challenge to laws affecting employee speech.  The plaintiffs complain that requiring them to pay the cost of the representation that the union is mandated to provide forces them to subsidize speech with which they disagree.  The Supreme Court upheld this practice against the same constitutional challenge in 1977 in Abood v. Detroit Board of EducationFriedrichs requires no different result.  Congress, in the National Labor Relations Act (NLRA), and the states that have similar statutes, adopted the existing labor relations systems to balance the rights of employers, employees, unions, and the public.  “Fair share” fees are an integral part of these carefully constructed systems, insuring the effective functioning of the systems to achieve the goal of orderly labor relations.  That interest outweighs the objecting employees’ far weaker interest in not paying for collective representation when they do not agree with bargaining goals of the majority of their fellow employees.  The Court should leave well enough alone. Continue reading »

Tuesday round-up

By on Aug 25, 2015 at 7:18 am

Yesterday the Chief Justice allowed former Virginia governor Bob McDonnell to stay out of prison, at least temporarily.  The Court ordered the federal government to respond by Wednesday afternoon to McDonnell’s application to postpone his imprisonment while he pursues Supreme Court review.  Lyle Denniston covered the Chief Justice’s order for this blog; other coverage comes from Matt Zapotsky of The Washington Post.

Also yesterday, “friend of the court” briefs were filed by states, rabbis, nuns, and a Southern Baptist seminary in the challenge by the Little Sisters of the Poor to the Affordable Care Act’s birth-control mandate.  Coverage comes from Daniel Siegal of Law 360 and Paige Cunningham of the Washington Examiner.

If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.


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UPDATED Wednesday 6:01 p.m.   The Justice Department urged the Supreme Court not to allow the former governor to remain free while he pursues his appeal.  The Court, it argued, is not likely to grant review of the case, or to rule his way even if it did.  The Court recently denied review of a political corruption case raising issues close to those in McDonnell’s case, it added.  FURTHER UPDATE: Thursday 1:06 p.m.  The former governor’s reply brief is here.


Chief Justice John G. Roberts, Jr., on Monday afternoon temporarily blocked the imprisonment of former Virginia Governor Robert F. McDonnell until the Supreme Court can consider further his plea to remain free while he appeals his corruption conviction.   The Chief Justice’s order is here.

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Deborah J. La Fetra is a Principal Attorney at Pacific Legal Foundation.  Since 1990, she has written dozens of amicus briefs and directly represented dissenters in challenges to state-compelled subsidization of politicking.  She is representing PLF and Linda Chavez on an amicus brief in the Friedrichs case.

In Davenport v. Washington Education Association, the Supreme Court described laws that empower unions to garnish the wages of non-union members as an “extraordinary state entitlement to acquire and spend other people’s money.”  Nonetheless, for nearly forty years, since Abood v. Detroit Board of Education, the Court has allowed that wage garnishment on the theory that without such entitlements, unions’ collective bargaining efforts might be undermined by “free riders.”  A series of cases upholding workers’ First Amendment rights to speak and associate as they choose has steadily chipped away at Abood, culminating in this Term’s grant in Friedrichs v. California Teachers Association.  The Court should take this opportunity to overrule the flawed Abood decision.  That case was based on faulty premises and an unrealistic view of public-employee unionism, and the rule it announced infringes on individual rights.

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