Reacting to an undoubted invitation by the Supreme Court to raise the issue, a group of California public school teachers on Tuesday persuaded the Justices to review the constitutionality of requiring government workers to pay fees to support any labor union activity.  The case involves a direct request for the Court to overrule a 1977 decision that had upheld such fees under “agency shop” rules.

It has been clear, since the Court’s ruling exactly one year ago in Harris v. Quinn, that a majority of the Court would welcome a plea to undo the first precedent extending “agency shop” rules to the public sector — Abood v. Detroit Education Association. That four-decade-old precedent was roundly criticized in the lead opinion in Harris, but the opinion stopped short of saying that the ruling should be overturned.

That is the key issue in the new case, Friedrichs v. California Teachers AssociationIn fact, that case from its beginning was intended as a direct challenge to the Abood decision, and two lower courts decided it quickly on that premise, sending it on toward the Supreme Court.

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Kent Scheidegger is the attorney for the Criminal Justice Legal Foundation, which filed an amicus brief in support of the respondents. 

“[I]s it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty …?” Justice Samuel Alito asked at oral argument two months ago in Glossip v. Gross. Yesterday we got the answer. No, it is not.

From great debate to war of attrition

The moral and policy debates on capital punishment are older than the Republic, but until the 1960s the debate was not a constitutional one. In 1958 Chief Justice Earl Warren unequivocally rejected the notion that the death penalty was unconstitutional. The subsequent constitutional debate came to a climax in 1976, when the Supreme Court rejected the argument that the death penalty was unconstitutional but began the process of reading a host of limitations and procedural requirements into the Eighth Amendment. Continue reading »

Tuesday round-up

By on Jun 30, 2015 at 7:00 am

Yesterday morning the Court issued its final three opinions of the Term.  Mark Walsh provided us with a “view” of the proceedings from the Courtroom, while Ilya Shapiro weighs in on the decisions at Cato at Liberty.

In Glossip v. Gross, the Court rejected a challenge to Oklahoma’s use of a sedative normally used to treat anxiety as the first drug in its three-drug lethal injection cocktail.  I covered the decision in Plain English, with other coverage coming from Howard Fischer of Capitol Media Services (via YourWestValley.com) and Howard Mintz of the San Jose Mercury News.  Commentary comes from our online symposium on the decision, Eric Berger at CNN, Michael Meltsner and Martha Davis at the Human Rights at Home Blog, John Donahue at the Stanford Lawyer, Hadar Aviram at PrawfsBlawg and California Correctional Crisis, Steven Schwinn at the Constitutional Law Prof Blog, Corinna Lain at PrawfsBlawg, Aaron Caplan at PrawfsBlawg, and Josh Lee at casetext. Continue reading »

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Operators of electric generating plants that burn coal or oil have a right to try to convince the government that regulating poisons that come out of their smokestacks will cost them too much and thus should not go ahead, the Supreme Court ruled by a five-to-four vote on Monday.   The decision focused on the very hazardous pollutant mercury but may apply to others as well.

When Congress orders an agency to begin regulating an industry, but says it should do so only if “appropriate and necessary,” the agency must take costs into account before it issues any orders, according to the ruling in a group of cases under the name Michigan v. Environmental Protection Agency.

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Andrew Brasher is the Solicitor General of Alabama, which filed an amicus brief supporting the respondents. 

The story of Glossip v. Gross is that no lethal injection protocol can satisfy people who believe there should be no executions. That has always been the subtext of the case. And now that the Justices have issued their opinions, it has become explicit. Continue reading »

Continuing to make sure that female employees and students have access to birth control, but that religious non-profit organizations where those women work or study do not have to provide it, the Supreme Court took action Monday on a case that is developing for next Term.

In a two-page order, the Court turned aside requests by Roman Catholic colleges, charities, and other non-profits in Pennsylvania to keep on hold a ruling by the U.S. Court of Appeals for the Third Circuit, rejecting those groups’ challenge to the Affordable Care Act’s contraceptive mandate.   Justice Samuel A. Alito, Jr., had temporarily put that ruling on hold last April until further legal papers were filed, but had taken no further action since.

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Splitting five to four, the Supreme Court on Monday afternoon temporarily blocked Texas from enforcing two new requirements that abortion clinic operators say will force many of them to close.  The order will keep those rules on hold at least until the Court decides whether to rule on their constitutionality.   The restrictions had been due to go into effect Wednesday.

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It’s unseasonably mild on this last Monday of June in Washington. That will make it easier on those who partake in what has come to be known as “the running of the interns.”

These are the young assistants, many clad in athletic shoes, who rush written opinions from the Public Information Office out to the broadcast and cable TV correspondents on the sidewalk in front of the Court building. They first became a thing a few years ago, and have re-emerged as a meme this month, with mentions on the news and in The Washington Post.

They are on our mind as we take a seat in the Courtroom this morning because of something that Chief Justice John G. Roberts, Jr., wrote earlier in the Term. In his year-end report on the judiciary, released on December 31, Roberts discussed how the current Court was slowly and deliberately embracing new technology that will see the introduction of a full-blown electronic filing system by as soon as next year! Continue reading »

 
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Justice Ginsburg with opinion of the Court (Art Lien)

Justice Ginsburg with opinion of the Court (Art Lien)

Analysis

Unable itself to find a constitutional way to curb the habits of lawmakers in crafting new election districts to give their party an advantage, a divided Supreme Court ruled on Monday that a state’s voters can do that if they choose to hand over the task of fashioning congressional district boundaries to an independent commission.

The five-to-four decision in an Arizona case does not immediately control the situation in other states, but does empower voters where they have direct legislative power to use it to try to reduce partisan control of elections for at least one house of Congress.  At least six other states do it in the way that Arizona does.

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Relist Watch

By on Jun 29, 2015 at 3:05 pm

John Elwood reviews today’s relisted cases.

Before clearing out of town for the summer recess, the Justices gathered for one final Conference today. Below are the relisted cases that they considered at that Conference. We’ll find out tomorrow at 9:30 whether any of these cases made the cut.

Thanks to Stephen Gilstrap for compiling this update. And thanks to the whole Relist Watch gang for all their hard work this Term – I don’t want to say it was thankless drudgery, because that would describe it perfectly. See you in the fall! Continue reading »

 
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