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Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

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SCOTUS Blinks

June 30th, 2014

An interesting turn of phrase I’ve seen of late in Supreme Court opinion is some variant of “blinks reality.”

In Harris v. Quinn, Justice Kagan wrote:

But that view of the First Amendment interests at stake blinks decades’ worth of this Court’s precedent.

In McCullen v. Coakley, Justice Scalia wrote:

It blinks reality to say, as the majority does, that a blanket prohibition on the use of streets and sidewalks where speech on only one politically controversial topic is likely to occur—and where that speech can most effectively be communicated—is not content based.

In Fernandez v. California, Justice Ginsburg:

Yet it blinks reality to suppose that Fernandez, by withholding consent, could stop police in their tracks eternally.

I like it.

Kagan on Stare Decisis

June 30th, 2014

In Harris v. Quinn, Justice Kagan offers an extended discussion on why Abood, even if wrong, should not be overturned.

First, the precedent is “entrenched in a way not many decisions are.”

And Abood is not just any precedent: It is entrenched in a way not many decisions are. Over nearly four decades, we have cited Abood favorably numerous times, and we have repeatedly affirmed and applied its core distinction between the costs of collective bargaining (which the government can demand its employees share) and those of  political activities (which it cannot).

Kagan also calls out the majority for casting doubt on Abood in Knox, without any briefing:

Not until two years ago, in Knox v. Service Employees, 567 U. S. ___ (2012), did the Court so much as whisper (there without the benefit of briefing or argument, see id., at ___ (SOTOMAYOR, J., concurring in judgment) (slip op., at 1–6)) that it had any misgivings about Abood. milimi

Second, it has “created enormous reliance interests”:

Perhaps still more important, Abood has created enor- mous reliance interests. More than 20 States have enacted statutes authorizing fair-share provisions, and on that basis public entities of all stripes have entered into multi- year contracts with unions containing such clauses. “Stare decisis has added force,” we have held, when overturning a precedent would require “States to reexamine [and amend] their statutes.” Hilton v. South Carolina Public Railways Comm’n, 502 U. S. 197, 202–203 (1991). And on top of that, “[c]onsiderations in favor of stare decisis are at their acme in cases involving property and contract rights.” Payne, 501 U. S., at 828. Here, governments and unions across the country have entered into thousands of con- tracts involving millions of employees in reliance on Abood. Reliance interests do not come any stronger.

Third, being wrong is not enough.

The majority’s criticisms of Abood do not remotely de- feat those powerful reasons for adhering to the decision. The special justifications needed to reverse an opinion must go beyond demonstrations (much less assertions) that it was wrong; that is the very point of stare decisis. And the majority’s critique extends no further. It is mostly just a catalog of errors Abood supposedly committed— reproaches that could have been leveled as easily 40 years ago as today.  If the kind of hand-wringing about blurry lines that the majority offers were enough to justify breaking with precedent, we might have to discard whole volumes of the U. S. Reports.

Justice Thomas would counter in constitutional decisions, stare decisis is inapplicable.

This strategy is consistent with Rick Hasen’s discussion of anticipatory overruling:

Justice Alito’s opinion for the Supreme Court in the Harris v. Quinn case gives all kinds of reasons for overturning the key pro-union case of Abood. Yet the Court majority does not pull the trigger.  Why not?  This seems to be a common move of the Roberts Court, as I explained in Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, 61 Emory Law Journal 779 (2012): “Anticipatory overruling occurs when the Court does not overrule precedent but suggests its intention to do so in a future case.” It is one of the tools the Roberts Court uses to appear moderate and minimalist.

In effect, Kagan’s opinion was a See-I-Told-You-So for the next go-round when the Court overules Abood.

And the majority says nothing to the contrary: It does not pretend to have the requisite justifications to overrule Abood. Readers of today’s decision will know that Abood does not rank on the majority’s top-ten list of favorite precedents—and that the majority could not restrain itself from saying (and saying and saying) so. Yet they will also know that the majority could not, even after receiving full-dress briefing and argument, come up with reasons any- where near sufficient to reverse the decision. Much has gone wrong in today’s ruling, but this has not: Save for an unfortunate hiving off of ostensibly “partial-public” em- ployees, ante, at 28, Abood remains the law.

And come on Elena. Could you not say “Abood abides.”

Obama – I Take Executive Action When We Have “Serious Problem” And Congress Does “Nothing”

June 30th, 2014

In stunning remarks from the White House Rose Garden (not standing on the balcony of the executive’s mansion), the President outlined his views on why executive action is appropriate. In short, “I take executive action only when we have a serious problem, a serious issue, and Congress chooses to do nothing.” He will “fix the immigration system on my own, without Congress.”

This is an extremely dangerous position. Whenever the executive identifies a problem, and Congress chooses to do nothing, the President thinks he can make laws. The Supreme Court has made abundantly clear this is unconstitutional. As I explained at some length in this post, executive power is not a “safety valve” Congressional intransigence. Inaction does not give the President  a license. to act. The President decided not to wait to get his nominees confirmed in the Senate. The Supreme Court told him, 9-0, you can’t do that.

As Justice Scalia noted in Noel Canning:

The troublesome need to do so is not a bug to be fixed by this Court, but a calculated feature of the consti­ tutional framework. As we have recognized, while the Constitution’s government-structuring provisions can seem “clumsy” and “inefficient,” they reflect “hard choices . . . consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked.” Chadha, supra, at 959.

Also, the President repeatedly said “everyone agrees” on immigration. This simply isn’t true. It is a divisive issue, and Congress, for better or worse, has decided not to do anything about it now. That doesn’t give the President a license to rule by fiat.

Further, the President scoffed at the idea that members of Congress are opposed to passing a bill because they don’t trust the President to faithfully execute it. His response–they should pass a bill. Well duh. That’s the point. The President will take executive action with or without a bill. Why suffer from the pretense of affording him more power.

This speech should be included as Exhibit A in Boehner’s lawsuit.

Update: More from Boehner:

Obama further asserted that the reason he takes executive actions is due to Congress’ inaction.

“I don’t prefer taking administrative action. I’d rather see permanent fixes to the issue we face. Certainly that’s true on immigration. I’ve made that clear multiple times,” he said.

“I take executive action only when we have a serious problem, a serious issue, and Congress chooses to do nothing,” he stressed. And in this situation, the failure of Republicans to pass a darn bill is bad for our security, it’s bad for our economy, and its bad for our future,” Obama added.

Meanwhile Boehner blamed Obama’s executive orders for the ongoing crisis of unaccompanied minors illegally crossing the southwest border. 

“The president’s own executive orders have led directly to the humanitarian crisis along the southern border, giving false hope to children and their families that if they enter the country illegally they will be allowed to stay,” Boehner said. “The White House claims it will move to return these children to their families in their home countries, yet additional executive action from this president isn’t going to stem the tide of illegal crossings, it’s only going to make them worse.”

Harris v. Quinn on Compelled Speech

June 30th, 2014

While much of Justice Alito’s majority opinion dealt with the fine contours of speech related to unions, it did have a brief discussion on compelled speech:

As we explained in Knox, “[t]he government may not prohibit the dissemination of ideas that it disfavors, nor compel the endorsement of ideas that it approves.” 567 U. S., at ___ (slip op. at 8–9); see also, e.g., R.A.V. v. St. Paul, 505 U. S. 377, 382 (1992); Riley v. National Federa­ tion of Blind of N.C., 487 U. S. 781, 797 (1988) West Vir­ ginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943); Wooley v. Maynard, 430 U. S. 705, 713–715 (1977). And “com­ pelled funding of the speech of other private speakers or groups” presents the same dangers as compelled speech. Knox, supra, at ___ (slip op. at 9). As a result, we ex­ plained in Knox that an agency-fee provision imposes “a ‘significant impingement on First Amendment rights,’” and this cannot be tolerated unless it passes “exacting First Amendment scrutiny.” 567 U. S., at ___ (slip op. at 9–10).

People who Think @SCOTUSBlog is #SCOTUS

June 30th, 2014

This is Grade-A trolling from Tom Goldstein. Some of these are pretty funny.

Update: More at TPM.