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Monday round-up

This morning the court hears oral argument in one of the term’s major cases, Janus v. American Federation of State, County, and Municipal Employees, Council 31, in which the justices will consider whether an Illinois law allowing public-sector unions to charge nonmembers for collective-bargaining activities violates the First Amendment. Amy Howe previewed Janus for this blog. Kristina Hurley and Michael Iadevaia preview the case at Cornell Law School’s Legal Information Institute. Counting to 5 (podcast) offers another advance look at the case. At Reuters, Robert Iafolla and Lawrence Hurley report that “[t]aking away mandatory agency fees could have profound implications for public-sector union coffers.” For The Wall Street Journal, Jess Bravin reports that although “[a]ttitudes about the value of public-sector unions underlie the case,” “[t]he specific legal question before the court … is more abstract.” Additional coverage comes from Nina Totenberg at NPR, Ariane de Vogue at CNN, and Steven Mazie at The Economist’s Espresso blog. Andrew Hamma and Caitlin Emma at Politico also look at Janus, as do Mary Bottari at In These Times and Rachel Cohen at The Intercept. For The New York Times, Noam Scheiber and Kenneth Vogel report that “[t]he case illustrates the cohesiveness with which conservative philanthropists have taken on the unions in recent decades.” Another look at the donors behind Janus comes from Ed Pilkington at The Guardian.

The editorial board of The Wall Street Journal maintains that a ruling for Mark Janus “wouldn’t be a death blow to government unions, though they might have to prioritize resources and reduce political spending.” At The Nation, David Cole and Amanda Shanor argue that “[t]he First Amendment protects the right to speech, but not the right to get something for nothing.” Additional commentary comes from David Rivkin and Andrew Grossman in an op-ed for The Wall Street Journal, George Will in an op-ed for The Washington Post, William Gould in an op-ed for The Mercury News, Cory Booker in an op-ed for HuffPost, Kim Glas in an op-ed at The Hill, and Xavier Becerra in an op-ed for the San Diego Union-Tribune, Sean McElwee and Mark Joseph Stern at Slate, and Kenneth Jost at Jost on Justice. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case.]

Today’s second argument is in Ohio v. American Express Co., which involves the application of antitrust law to credit-card-network anti-steering rules. Beth Farmer had this blog’s preview. Connor O’Neill and Abigail Yeo preview the case for Cornell. Subscript offers a graphic explainer for the case, and Counting to 5 (podcast) has a preview here, and a preview of all this week’s cases here. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioners in this case.]

For The Washington Post, Ellen Nakashima reports that the Supreme Court’s decision in United States v. Microsoft Corp., a case on tomorrow’s argument calendar that asks whether the government can gain access from email providers to data that is stored overseas, “could have far-reaching implications for law enforcement access to digital data and for U.S. companies that store customer emails in servers overseas.” Additional coverage of Microsoft comes from Selena Larson at CNN and Lawrence Hurley at Reuters. In an op-ed for The Hill, Gabe Roth argues that any justices who hold stock in technology companies should divest themselves before participating in Microsoft because, “[i]ntentionally or not, these justices may be profiting from how they vote.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondent in this case.]

At USA Today, Richard Wolf reports that the plaintiff in Tuesday’s second case, Lozman v. City of Riviera Beach, Florida, in which the justices will decide whether the existence of probable cause defeats a retaliatory-arrest claim, “has attracted support from major media organizations and defenders of the First Amendment.” Additional coverage of Lozman the case, and Lozman the litigant, whose “battles with the political leaders of this town of 35,000 people … they have drawn the attention of the U.S. Supreme Court … “[n]ot once, but twice,” comes from Robert Barnes for The Washington Post.


  • At Constitution Daily, Lyle Denniston reports that “the two top Republican lawmakers in the state returned to the U.S. Supreme Court [last week] with a plea to block the judge-drawn map,” “[a]rguing that the Pennsylvania Supreme Court unconstitutionally seized the power to draw new congressional districts away from the state legislature.”
  • At CNN, Ariane de Vogue reports that a dissent from denial of certiorari last week in a case brought by gun-rights advocates reveals Justice Clarence Thomas’ belief “that lower courts are thumbing their nose at a landmark 2008 Supreme Court opinion holding that the 2nd Amendment protects an individual’s right to keep and bear arms.”
  • At The Atlantic, Garrett Epps explains why Epic Systems v. Lewis, in which the court will decide whether labor laws forbid class waivers in employment contracts, which, although garnering less attention than Janus, “may harm millions of Americans who work for wages, whether they belong to unions or not.”
  • At National Law Review, Donald Davis looks at the court’s decision last week in Digital Realty Trust Inc. v. Somers, in which the court ruled that the anti-retaliation provision of the Dodd-Frank Act does not apply to a whistleblower who has not first reported a violation to the Securities and Exchange Commission, calling the outcome “a double-edged sword for employers.”
  • Also at National Law Review, Steven Swirsky and others discuss last week’s summary reversal in CNH Industrial v. Reese, which “reaffirmed that collective bargaining agreements must be interpreted according ordinary contract principles.”

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Recommended Citation: Edith Roberts, Monday round-up, SCOTUSblog (Feb. 26, 2018, 7:32 AM),