Editor's Note :

Editor's Note :

We expect orders from the February 23 conference on Monday at 9:30 a.m. There is a possibility of opinions on Tuesday at 10 a.m.
On Monday the court hears oral argument in Janus v. American Federation of State, County, and Municipal Employees, Council 31. Amy Howe has our preview.
On Monday the court also hears oral argument in Ohio v. American Express Co. Beth Farmer has our preview.

[Editor’s note: An earlier version  of this post ran on December 18, as an introduction to this blog’s symposium on Janus v. American Federation of State, County, and Municipal Employees, Council 31, as well as at Howe on the Court, where it was originally published.]

Like many employees, Mark Janus was upset about deductions from his paycheck – specifically, the roughly $45 per month that goes to the local branch of the American Federation of State, County, and Municipal Employees, the union that represents him. But unlike most employees, Janus – a child-support specialist at the state’s Department of Healthcare and Family Services, who does not belong to the union – may be able to do something about that deduction. Next week the Supreme Court will hear oral argument in his challenge to the constitutionality of the fee. It’s a familiar question for eight of the nine justices, who have already heard oral argument on the issue twice. The court did not resolve the issue the first time; the second time, in the wake of the death of Justice Antonin Scalia, they deadlocked. This means that the outcome in Janus’ case could hinge on the vote of the court’s newest justice, Neil Gorsuch.

In 1977, in Abood v. Detroit Board of Education, the Supreme Court ruled that government employees like Janus who do not belong to a union can be required to pay a fee – often known as a “fair share” or “agency” fee – to cover the union’s costs to negotiate a contract that applies to all public employees, including those who are not union members. The justices reasoned then that allowing the fees would help to avoid both labor strife and the prospect that nonmembers could be “free-riders” who benefit from the union’s collective bargaining efforts without having to pay for them. But that decision has come under fire in recent years, in a series of cases asking the court to overrule Abood and hold that requiring an unwilling employee to pay even this more limited fee violates the First Amendment.

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Tuesday round-up

By on Feb 20, 2018 at 6:33 am

Today the justices return after a three-week break to hear oral arguments in two criminal cases. First up is Currier v. Virginia, which asks what happens to a defendant’s double jeopardy protections when he consents to sequential trials for multiple, overlapping offenses. Lissa Griffin previewed the case for this blog. Amanda Wong and Jared Ham offer a preview at Cornell Law School’s Legal Information Institute. Counting to 5 (podcast) provides another preview of Currier and, in a second episode, a look ahead at all this week’s cases. The George Washington Law Review’s On the Docket blog previews all the cases in the February argument sitting.

This morning’s second case is City of Hays v. Vogt, which asks whether a probable-cause hearing is part of a criminal case within the meaning of the Fifth Amendment’s self-incrimination clause. Rory Little has this blog’s preview. Madeline Horn and Conley Wouters preview the case for Cornell.

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On February 22 at 12 p.m., the Cato Institute will host a panel discussion on Minnesota Voters Alliance v. Mansky, a First Amendment case that will be argued before the Supreme Court on February 28. Panelists include Wen Fa, Ginger Anders and Trevor Burrus; Ilya Shapiro will moderate. Registration and additional information about this event, which will be held at Cato Institute’s Hayek Auditorium, is available on the Cato website.

 
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The Supreme Court’s long break is over and we’re here to preview some of the most interesting cases from the February sitting. We take a deep dive into Janus v. AFSCMELozman v. City of Riviera BeachCurrier v. Virginia and Ohio v. American Express, making our trademark predictions as to each case. We also speculate about who Justice Ruth Bader Ginsburg threw some recent shade at, and we wrap things up with some hotline calls.

This week at the court

By on Feb 18, 2018 at 12:00 pm

On Tuesday the court released orders from the February 16 conference. On Wednesday the court released its opinions in Murphy v. SmithRubin v. Islamic Republic of IranClass v. United States and Digital Realty Trust v. Somers. The justices heard oral argument on Tuesday in Currier v. Virginia and City of Hays v. Vogt and on Wednesday in Rosales-Mireles v. United States and Dahda v. United States. The calendar for the February sitting is available on the court’s website. On Friday the justices met for their February 23 conference; our list of “petitions to watch” for that conference is available at this link.

 
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Petition of the day

By on Feb 16, 2018 at 5:30 pm

The petition of the day is:

17-1060
Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.

Issues: (1) Whether, under the first-to-file bar of the False Claims Act, 31 U.S.C. § 3730(b)(5), later actions may proceed without refiling once all earlier action have been dismissed, or whether later actions must be dismissed and refiled; and (2) whether the first-to-file bar of the FCA is jurisdictional, and, if so, whether the bar applies only at the time of filing, or whether it may be lifted by amendment, supplement, or later events.

In an op-ed Thursday in the Los Angeles Times, law professor Rick Hasen suggested that “there is something disconcerting about Supreme Court justices becoming political rock stars.” He cautioned against turning the justices into gods and devils. Hasen isn’t the only commentator addressing the hagiography of the justices. Speaking on Monday at the University of Pennsylvania Law School as part of a panel that included Justice Ruth Bader Ginsburg, Slate’s Dahlia Lithwick encouraged members of the media to reconsider recent portrayals of Ginsburg. She suggested that depictions of her as cultural icon and judicial celebrity reduce the complexity of her personality and contributions to the law.

Yesterday at the Law Library of Congress, Justice Clarence Thomas weighed in, echoing Hasen’s and Lithwick’s thoughts. Thomas said he regretted the “myth-making around the court and who we are” as justices and people, which has created a contrast between the “real world” of the Supreme Court and how it is portrayed outside the court. Judges and justices “don’t have the time, energy, or ink to engage in the narrative battles” ascribed to them by some in the media, Thomas said.

Journalists might write that a justice decided a case “callously” – especially a death penalty case – but “those are people who’ve never stayed up in the middle of the night voting on it,” Thomas continued.

Several times in his remarks with Judge Gregory Maggs of the U.S. Court of Appeals for the Armed Forces, Thomas spoke about Justice Antonin Scalia. He said that Scalia and he “trusted each other so much” because “getting it right was important to both of us.”

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On February 21 at 12:45 p.m. PST, Stanford University’s CodeX will host a presentation by Daniel Martin Katz entitled, “How Crowdsourcing Accurately and Robustly Predicts Supreme Court Decisions.” More information about this event, which will include remote access, is available at this link.

Relatedly, this blog is collaborating with Good Judgment to offer the SCOTUS Challenge, which invites forecasters to predict the outcomes of Supreme Court cases from this term. This opportunity for readers is available on the SCOTUS Challenge page.

 
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Friday round-up

By on Feb 16, 2018 at 5:30 am

Briefly:

  • For the New Republic, Matt Ford suggests that by agreeing to review Gonzalez-Badillo v. United States, in which the petitioner argues that under the Fourth Amendment, “[h]is general acquiescence to a search of his bag … did not extend to the destruction of his personal property,” the court could “bring greater clarity to one’s constitutional rights during a consensual search.”
  • Constitution Daily reports that yesterday was the anniversary of the signing in 1879 of “a new law that would admit women as members of the Supreme Court bar and allow them to submit and argue cases at the high court.”
  • At Reuters’ On the Case blog, Alison Frankel explains why the Trump administration’s request to hear a challenge to a district-court order blocking the administration’s attempt to unwind the Deferred Action for Childhood Arrivals program before the court of appeals has ruled on the issue may be more of a long shot after the issuance this week of “a second nationwide injunction barring rescission of the DACA program.”
  • In an op-ed at The Hill, Anne O’Connor weighs in on National Institute of Family and Life Advocates v. Becerra, a First Amendment challenge by crisis-pregnancy centers to a California law requiring disclosures about the availability of publicly funded family-planning services, arguing that the Supreme Court should “take this opportunity to ensure that government cannot compel anyone to speak a message that violates their reason for being — especially when fundamental First Amendment rights are at stake.”
  • In an op-ed for the Los Angeles Times, Richard Hasen finds “something disconcerting about Supreme Court justices becoming political rock stars, particularly in this polarized era,” and suggests that “[m]aybe, just maybe, the left should tone it down with the worship of Supreme Court Justice Ruth Bader Ginsburg — a.k.a. ‘Notorious R.B.G.’”

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

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Petition of the day

By on Feb 15, 2018 at 5:00 pm

The petition of the day is:

17-1084

Issue: Whether, under principles of implied pre-emption, the federal Immigration and Nationality Act, 8 U.S.C. § 1101, et seq., forbids states from enacting legislation to prohibit human smuggling.

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