Friedrichs v. California Teachers Association

Friedrichs v. California Teachers Association

Opinion analysis: Justices narrow bankrupts’ power to rescind contracts in bankruptcy – Ronald Mann

Opinion analysis: Clarity on “clear evidence” of drug pre-emption? – Elizabeth McCuskey

Opinion analysis: Court rejects issue preclusion in affirming Crow Tribe’s treaty hunting right – Gregory Ablavsky

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Conference of May 16, 2019

Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
14-915	9th Cir.	Jan 11, 2016 Tr.Aud.	Mar 29, 2016	4-4	Per Curiam	OT 2015

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief by the American Federation of Teachers and American Association of University Professors in support of the respondents in this case.

Issue: (1) Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.

Judgment: Affirmed by an equally divided Court in a per curiam opinion on March 29, 2016.

Teachers want union fee case reheard -- probably next Term (Lyle Denniston)
Opinion analysis: Result but no guidance on public unions' fees (FINAL UPDATE) (Lyle Denniston)
Union fees in jeopardy: In Plain English (Amy Howe)
Argument analysis: The question not asked (Lyle Denniston)
Justices return to dispute over union fees for non-members: In Plain English (Amy Howe)
Argument preview: New threat to public-employee unions (Lyle Denniston)
SCOTUS for law students: Who speaks for Illinois? (Stephen Wermiel)
Symposium: Another battle in the war over union fees (Charlotte Garden)
Symposium: Correcting the “historical accident” of opt-out requirements (David Rivkin and Andrew Grossman)
Symposium: The Friedrichs petition should be dismissed (Catherine Fisk)
Symposium: Will the Court continue to recognize a distinction between bargaining with government and lobbying the government? (Bill Messenger)
Symposium: Public-sector unions, labor relations, and free speech (Ann Hodges)
Symposium: Overrule Abood to protect individual rights (Deborah La Fetra)
New challenge to public employee unions, made simple (Lyle Denniston)
A new look at race and politics in redistricting (Lyle Denniston)
New threat to public employee unionism (Lyle Denniston)
Petition of the day (Maureen Johnston)

Date	Proceedings and Orders (key to color coding)
Jan 26 2015	Petition for a writ of certiorari filed. (Response due March 2, 2015)
Feb 19 2015	Order extending time to file response to petition to and including April 1, 2015, for all respondents.
Feb 24 2015	Brief amicus curiae of Pacific Legal Foundation filed.
Feb 27 2015	Brief amicus curiae of National Right to Work Legal Defense Fund filed.
Feb 27 2015	Brief amicus curiae of Mackinac Center for Public Policy filed.
Feb 27 2015	Brief amicus curiae of Goldwater Institute filed.
Feb 27 2015	Brief amici curiae of Consitutional Law Professors, et al. filed.
Feb 27 2015	Waiver of right of respondent Elliott Duchon to respond filed.
Mar 2 2015	Brief amici curiae of Former California Governor Pete Wilson, et al. filed.
Mar 2 2015	Brief amici curiae of Kaneland, Illinois Unified School District #302 Administrative Support Staff filed.
Mar 2 2015	Brief amicus curiae of The Cato Institute filed.
Mar 2 2015	Brief amici curiae of Michigan and Eight Other States filed.
Mar 30 2015	Waiver of right of respondent Kamala D. Harris, Attorney General of California to respond filed.
Apr 1 2015	Brief of respondents California Teachers Association, et al. in opposition filed.
Apr 14 2015	Reply of petitioners Rebecca Friedrichs, et al. filed.
Apr 15 2015	DISTRIBUTED for Conference of May 1, 2015.
Apr 27 2015	Response Requested . (Due May 27, 2015)
May 27 2015	Brief of respondent Kamala D. Harris, Attorney General of California in opposition filed.
May 27 2015	Brief of respondent Elliott Duchon, Superintendent, Jurupa Unified School District in opposition filed.
May 28 2015	Letter dated May 28, 2015, from counsel for petitioners received waiving 14-day waiting period pursuant to Rule 15.5.
Jun 1 2015	Reply of petitioners to brief in opposition of the Attorney General of California. filed. (Distributed)
Jun 2 2015	DISTRIBUTED for Conference of June 18, 2015.
Jun 16 2015	Rescheduled.
Jun 22 2015	DISTRIBUTED for Conference of June 25, 2015.
Jun 25 2015	DISTRIBUTED for Conference of June 29, 2015.
Jun 30 2015	Petition GRANTED.
Jul 7 2015	The time to file the joint appendix and petitioners' brief on the merits is extended to and including September 4, 2015.
Jul 7 2015	The time to file respondents' briefs on the merits is extended to and including October 26, 2015.
Jul 21 2015	Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the petitioner.
Jul 24 2015	Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for respondents California Teachers Association, et al.
Jul 27 2015	Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the respondent Kamala D. Harris, Attorney General of California.
Sep 4 2015	Joint appendix (2 volumes) filed. (Statement of costs filed)
Sep 4 2015	Brief of petitioners Rebecca Friedrichs, et al. filed.
Sep 9 2015	Consent to the filing of amicus curiae briefs in support of either party or of neither party received from counsel for Elliott Duchon, Superintendent, Jurupa Unified School District.
Sep 10 2015	Brief amicus curiae of The Cato Institute filed.
Sep 10 2015	Brief amicus curiae of Susana Martinez, Governor of New Mexico filed.
Sep 10 2015	Brief amicus curiae of Mackinac Center for Public Policy filed.
Sep 11 2015	Brief amicus curiae of Buckeye Institute for Public Policy Solutions filed.
Sep 11 2015	Brief amicus curiae of Rutherford Institute filed.
Sep 11 2015	Brief amicus curiae of Becket Fund for Religious Liberty filed.
Sep 11 2015	Brief amicus curiae of National Federation of Independent Business Small Business Legal Center filed.
Sep 11 2015	Brief amicus curiae of National Right to Work Legal Defense Foundation, Inc. filed.
Sep 11 2015	Brief amici curiae of Center on National Labor Policy, Inc., et al. filed.
Sep 11 2015	Brief amici curiae of Bruce Rauner, Governor of Illinois, et al. filed.
Sep 11 2015	Brief amici curiae of Freedom Foundation and Dr. John Balz filed.
Sep 11 2015	Brief amici curiae of State Public Policy Research Organizations filed.
Sep 11 2015	Brief amicus curiae of Constitutional Law Professors, et al. filed.
Sep 11 2015	Brief amici curiae of Pacific Legal Foundation, et al. filed.
Sep 11 2015	Brief amici curiae of Former California Governor Pete Wilson, et al. filed.
Sep 11 2015	Brief amici curiae of Illinois State Workers filed.
Sep 11 2015	Brief amicus curiae of Daniel DiSalvo filed.
Sep 11 2015	Brief amicus curiae of Public School Teachers Who Favor School Choice filed.
Sep 11 2015	Brief amici curiae of Michigan and Seventeen Other States filed.
Sep 11 2015	Brief amicus curiae of Goldwater Institute filed.
Sep 11 2015	Brief amici curiae of Former California Senate Majority Leader Gloria Romero, et al. filed.
Sep 11 2015	Brief amicus curiae of Mountain States Legal Foundation filed.
Sep 11 2015	Brief amicus curiae of Atlantic Legal Foundation filed.
Sep 11 2015	Brief amicus curiae of Friedman Foundation for Educational Choice, Inc. filed.
Sep 11 2015	Brief amici curiae of Glenn J. Schworak and James E. Mitchell filed.
Sep 25 2015	Letter of Carolyn E. Shapiro, Solicitor General of Illinois received. (Distributed)
Oct 1 2015	Letter of Jason Barclay, General Counsel to the Governor received. (Distributed)
Oct 9 2015	Letter of Carolyn E. Shapiro, Solicitor General of Illinois received. (Distributed)
Oct 19 2015	Application (15A422) for an extension of time within which to file petitioners' reply brief on the merits, submitted to Justice Kennedy.
Oct 21 2015	The time to file respondents' briefs on the merits is further extended to and including November 6, 2015.
Oct 21 2015	Application (15A422) for an extension of time within which to file petitioners' reply brief on the merits is GRANTED by Justice Kennedy, and the time is extended to and including December 14, 2015.
Nov 6 2015	Brief of respondents Union Respondents filed.
Nov 6 2015	Brief of respondent Attorney General of California filed.
Nov 6 2015	Brief amici curiae of Corporate Law Professors filed.
Nov 12 2015	Brief amicus curiae of California School Employees Association filed. (Distributed)
Nov 12 2015	Brief amici curiae of Peace Officers Research Association of California, et al. filed.
Nov 12 2015	Brief amici curiae of 21 Past Presidents of the D.C. Bar filed.
Nov 12 2015	Brief amici curiae of Public School Teachers Brittany Alexander, et al.
Nov 12 2015	Brief amicus curiae of National Fraternal Order of Police filed.
Nov 13 2015	Brief amicus curiae of United States filed.
Nov 13 2015	Brief amicus curiae of New York City Municipal Labor Committee filed.
Nov 13 2015	Brief amicus curiae of International Association of Fire Fighters filed.
Nov 13 2015	Brief amici curiae of School Districts filed.
Nov 13 2015	Brief amici curiae of Social Scientists filed.
Nov 13 2015	Brief amici curiae of Republican Current and Former Members of State Legislatures and Congress filed.
Nov 13 2015	Brief amici curiae of Constitutional Law Scholars filed.
Nov 13 2015	Brief amici curiae of National Women's Law Center, et al. filed.
Nov 13 2015	Motion of the Solicitor General for leave to participate in oral argument as amicus curiae, for enlargement of time for oral argument, and for divided argument filed.
Nov 13 2015	Motion for divided argument filed by respondent Attorney General of California.
Nov 13 2015	Brief amici curiae of States of New York, et al. filed.
Nov 13 2015	Brief amici curiae of Professors Cynthia L. Estlund, et al. filed.
Nov 13 2015	Brief amici curiae of Cities, Counties and Elected Officials filed.
Nov 13 2015	Brief amicus curiae of Steve Bullock, Governor of Montana filed.
Nov 13 2015	Brief amici curiae of Labor Law & Labor Relations Professors filed.
Nov 13 2015	Brief amici curiae of American Federation of Labor and Congress of Industrial Organizatons, et al. filed.
Nov 13 2015	Brief amici curiae of American Federation of Teachers and American Association of University Professors filed.
Nov 13 2015	Brief amici curiae of National Council on Teacher Retirement, et al. filed.
Nov 13 2015	Brief amici curiae of Los Angeles County's Department of Health Services, et al. filed.
Nov 13 2015	Brief amicus curiae of The City of New York filed.
Nov 24 2015	SET FOR ARGUMENT on Monday, January 11, 2016
Nov 30 2015	Motion for divided argument filed by respondent GRANTED.
Nov 30 2015	Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED, and the time is divided as follows: 40 minutes for petitioners, 15 minutes for the Union Respondents, 15 minutes for respondent Attorney General of California, and 10 minutes for the Solicitor General.
Dec 4 2015	Record requested from U.S.C.A. 9th Circuit.
Dec 11 2015	CIRCULATED.
Dec 14 2015	Reply of petitioners Rebecca Friedrichs, et al. filed. (Distributed)
Jan 11 2016	Argued. For petitioners: Michael A. Carvin, Washington, D. C. For respondent Attorney General of California: Edward C. DuMont, Solicitor General of California, San Francisco, Cal. For Union Respondents: David C. Frederick, Washington, D. C. For United States as amicus curiae supporting respondents: Donald B. Verrilli, Jr., Solicitor General, Department of Justice, Washington, D. C.
Mar 29 2016	Adjudged to be AFFIRMED. Opinion per curiam. The judgment is affirmed by an equally divided Court.
Apr 8 2016	Petition for Rehearing filed.
Apr 13 2016	DISTRIBUTED for Conference of April 29, 2016.
Apr 28 2016	Rescheduled.
May 9 2016	DISTRIBUTED for Conference of May 12, 2016.
May 10 2016	Rescheduled.
May 16 2016	DISTRIBUTED for Conference of May 19, 2016.
May 17 2016	Rescheduled.
May 23 2016	DISTRIBUTED for Conference of May 26, 2016.
May 25 2016	Rescheduled.
May 31 2016	DISTRIBUTED for Conference of June 2, 2016.
Jun 1 2016	Rescheduled.
Jun 6 2016	DISTRIBUTED for Conference of June 9, 2016.
Jun 8 2016	Rescheduled.
Jun 13 2016	DISTRIBUTED for Conference of June 16, 2016.
Jun 16 2016	Rescheduled.
Jun 20 2016	DISTRIBUTED for Conference of June 23, 2016.
Jun 21 2016	Rescheduled.
Jun 27 2016	DISTRIBUTED for Conference of June 27, 2016.
Jun 28 2016	Rehearing DENIED.
Jun 28 2016	JUDGMENT ISSUED

Featured Posts

Opinion analysis: Justices narrow bankrupts’ power to rescind contracts in bankruptcy – Ronald Mann

Opinion analysis: Clarity on “clear evidence” of drug pre-emption? – Elizabeth McCuskey

Opinion analysis: Court rejects issue preclusion in affirming Crow Tribe’s treaty hunting right – Gregory Ablavsky
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This Week at the Court
The Supreme Court released orders from the May 16 conference on Monday; the justices granted Ritzen Group Inc. v. Jackson Masonry, LLC.
On Monday, the justices released their opinions in Mission Product Holdings Inc. v. Tempnology, LLC, Herrera v. Wyoming and Merck Sharp & Dohme Corp. v. Albrecht.
On Thursday, the justices meet for their May 23 conference.
Major Cases
- Department of Commerce v. New York
  (1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.
- Lamone v. Benisek
  In case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
- Kisor v. Wilkie
  Whether the Supreme Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.
- Rucho v. Common Cause
  (1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
- The American Legion v. American Humanist Association
  (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.
- Gamble v. United States
  Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
see all this term’s cases »
Recent Decisions
- Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.
- Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.
- Mission Product Holdings Inc. v. Tempnology, LLC A bankruptcy debtor’s rejection of an executory contract under 11 U.S.C. §365 has the same effect as a breach of that contract outside bankruptcy; such an act thus cannot rescind rights that the contract previously granted.
see all this term’s cases »
Current Relists
- al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.
- Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.
- Box v. Planned Parenthood of Indiana and Kentucky Inc. Whether a state, consistent with the 14th Amendment, may require an ultrasound as part of informed consent at least 18 hours before an abortion.
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Cases argued 70

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Summary reversals 4

Merits cases granted to date 73

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Justice Thomas at Pepperdine Law School

On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.

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Cases argued	70
Cases decided	32
Summary reversals	4
Merits cases granted to date	73

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