The Costs of Janus v. AFSCME

Posted on Categories Business Regulation, Constitutional Interpretation, Constitutional Law, First Amendment, Labor & Employment Law, Legal Profession, Marquette Law School, Public, Speakers at Marquette, U.S. Supreme CourtLeave a comment» on The Costs of Janus v. AFSCME

Photo of statue depicting a bust of Janus, the two-headed Roman God.On April 10 I participated in a panel discussion sponsored by the Law School Chapter of the Federalist Society.  The presentation was entitled “Lawyers, Plaintiffs, and Professors, Oh My!: Janus v. AFSCME.”  The other panelists were Adjunct Professor and Director of the Law Library Elana Olson, Alumnus Daniel Suhr from the Liberty Justice Center , and Mark Janus, the name plaintiff in the case of Janus v. AFSCME.  What follows are my prepared remarks.

In June of 2018 the United States Supreme Court held, in the case of Janus v. AFSCME, that it is a violation of the First Amendment for State and public sector unions to assess mandatory agency fees to non-consenting employees.  The majority of the Court held that forcing non-union workers to contribute money to support non-political activities which benefit all workers violates the Free Speech rights of non-consenting employees.

In so holding, the Court overruled a precedent of over 40 years, Abood v. Detroit Board of Education, a 1977 case that had upheld the practice against a First Amendment challenge.

Opposition to labor unions and collective bargaining rights is a policy choice held by many political conservatives today, but it was not always the position of the Republican Party.  One of the early icons of the conservative political movement in the United States, Whittaker Chambers, was himself a union member at times in his career, he was supportive of the labor movement, and his wife and many of his relatives were union members.

This icon of political conservatism in the 1950s and 1960s supported collective bargaining rights so much, that when the parent of the conservative National Review Magazine gave an award named after Whittaker Chambers to our guest Mark Janus, in recognition of his participation in the Janus v. AFSCME litigation, the family of Whittaker Chambers objected to their father’s name being associated with the case. Continue reading “The Costs of Janus v. AFSCME”

Chief Justice Roberts: Biskupic Describes Her Insightful Look at a Reserved Figure

Posted on Categories Federal Law & Legal System, Public, Speakers at Marquette, U.S. Supreme CourtLeave a comment» on Chief Justice Roberts: Biskupic Describes Her Insightful Look at a Reserved Figure

Joan Biskupic says her fourth book about a member of the United States Supreme Court involved “my most difficult subject” – Chief Justice John Roberts. But, perhaps in good part for that reason, it is also attracting much attention.

Roberts is “a very reserved individual,” Biskupic said during an “On the Issues with Mike Gousha” program in the Lubar Center at Marquette Law School on Tuesday. “There’s a lot that you see, but much more that’s held back.” She had the benefit of eight interviews, covering more than twenty hours, with Roberts, but she said she wonders still about what is not known about him.

However, Biskupic’s newly-published biography, The Chief: The Life and Turbulent Times of Chief Justice John Roberts, does offer a lot, some of it not reported previously, about Roberts, who has been chief justice since 2005.

And in addition to a richly detailed description of Roberts’ life, the book breaks new ground in describing how Roberts came to be the decisive vote in upholding the constitutionality of the Affordable Care Act, often known as Obamacare, in 2012. Biskupic describes how he initially took positions opposing the constitutionality of the law during the court’s work on the case, then switched his views.

“I think he definitely did not want the whole law to go down,” she said. “I’m fine with saying I don’t know why, for sure.”

Continue reading “Chief Justice Roberts: Biskupic Describes Her Insightful Look at a Reserved Figure”

Timbs v. Indiana: SCOTUS Hits the Brakes on Major Source of Revenue for States & Municipalities

Posted on Categories Alumni Contributor, Constitutional Law, Criminal Law & Process, Public, U.S. Supreme CourtLeave a comment» on Timbs v. Indiana: SCOTUS Hits the Brakes on Major Source of Revenue for States & Municipalities

Police Vehicle from Manchester, New HampshireStates and municipalities have increasingly relied on fines and forfeitures as a means to raise revenue, and the ability of law enforcement to impose fines and forfeitures for various criminal and civil offenses has largely gone unchecked by the federal government until recently. The United States Supreme Court’s February 20, 2019 decision in Timbs v. Indiana significantly limits the once broad leeway states and municipalities have enjoyed in imposing fines and forfeitures. Under Timbs, law enforcement must now be additionally cautious not to impose fines and forfeitures that are far out of proportion to the gravity of the offense committed. Continue readingTimbs v. Indiana: SCOTUS Hits the Brakes on Major Source of Revenue for States & Municipalities”

Advice from Justice Clarence Thomas

Posted on Categories Legal Education, Public, Student Contributor, U.S. Supreme CourtLeave a comment» on Advice from Justice Clarence Thomas

Last spring in Washington, D.C. at the Federalist Society’s National Student Symposium, Justice Thomas told a room full of law students to “get rid of [their] pessimism.” Justice Thomas, your words have been ringing in my ears. Admittedly, many aspects of America’s contemporary legal and political landscape engender a lingering pessimism in me. I’d like to step back a moment from this divisive arena we encounter every day and briefly discuss a few points of optimism. Continue reading “Advice from Justice Clarence Thomas”

On Originalism and the First Amendment

Posted on Categories Civil Rights, Constitutional Interpretation, Constitutional Law, First Amendment, Political Processes & Rhetoric, Public, U.S. Supreme CourtLeave a comment» on On Originalism and the First Amendment
Political cartoon from 1888 showing little demons with names like "garbled News," "Paid Puffery," and "Boastful Lies" emerging from the mouth of a printing press.
The Evil Spirits of the Modern Daily Press (Puck Magazine 1888)

On October 18, 2018, I participated in a presentation entitled “Free Speech and Originalist Jurisprudence” at the University of Wisconsin-Stout along with Professor Alan Bigel (UW-Lacrosse).  The event was part of Free Speech Week sponsored by the Center for Study of Institutions and Innovation.  What follows is a copy of my prepared remarks.

“In December 1783, George Washington gave a toast at a dinner celebrating the formal dissolution of the Revolutionary Army.  He did not use his toast to offer a tribute to individual liberty.  Nor did he sing the praises of limited government.  Instead, his toast was a simple expression of what he hoped the future would bring to our new nation. He raised his glass and he said: “Competent powers to Congress for general purposes.”

I wrote that in a 2012 blog post, and I received an immediate and angry response from a lawyer who denied that George Washington ever said such a thing, and who rejected the idea that George Washington ever supported a powerful national government.  This well documented historical fact did not fit within the reader’s understanding of the original intent of our U.S. Constitution — and therefore the reader simply could not believe that the quotation could be accurate.

The response of this reader reflects the fact that, for many persons, originalism is primarily a culturally expressive theory – a theory that expresses a culture that reflects conservative political views, moral traditionalism, and a tendency towards libertarianism. (Jamal Greene, Nathaniel Persily & Stephen Ansolabehere, “Profiling Originalism,” 111 COLUMBIA L. REV. 356, 400-402 (2011)).

However, originalism as a theory was not invented in order to provide a vehicle for cultural expression.  Instead, the goal of originalism is to provide an interpretive method for objectively defining the meaning of the U.S. Constitution.

Originalism is an interpretive theory that understands a legal text to retain the meaning it had at the moment when it was enacted or ratified, until such time as the law is amended or repealed. (Chris Cooke, “Textualism is Not Strict Constructionism is Not Originalism,“leastdangerousblog.com, July 8, 2018).  It holds that the discoverable public meaning of the U.S. Constitution at the time of its initial adoption should be regarded as authoritative for purposes of later constitutional interpretation. (Keith Whittington, “Originalism: A Critical Introduction,” 82 FORDHAM L. REV. 375, 377 (2013)).

There is an abundant historical record supporting the conclusion that the United States Constitution was promoted by a core group of political leaders in order to strengthen the national government, and that the Constitution was understood by the people during the ratification debate to do just that.

In rejecting this historical record, the lawyer who responded to my blog post revealed that he was more devoted to his favored myth of original meaning than he was to objectively weighing the available evidence of actual meaning. Continue reading “On Originalism and the First Amendment”

The Mirror of Racial Tyranny in The Civil Rights Cases

Posted on Categories Civil Rights, Constitutional Interpretation, Constitutional Law, Legal History, Public, Race & Law, U.S. Supreme CourtLeave a comment» on The Mirror of Racial Tyranny in The Civil Rights Cases
Political cartoon from the nineteenth century showing an African American holding a copy of the Civil Rights Act of 1875 while standing at the Gates of Heaven
This 19th Century Thomas Nast cartoon shows an African American at the Gates of Heaven, telling Saint Peter that the Civil Rights Act of 1875 opens all gates for him.  Nast’s caption calls on white churches to desegregate.

On the 135th Anniversary of the Supreme Court’s opinion in The Civil Rights Cases, it is worth reflecting on how that opinion — which came after Reconstruction but before Jim Crow—reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the power of the history of slavery and the salience of race, contributes to enduring white supremacy.
This week marks the 135th anniversary of the U.S. Supreme Court’s opinion in The Civil Rights Cases, 109 U.S. 3 (1883). While to some this is a mere historical footnote, the decision is worth remembering because it reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the salience of race, contributes to enduring structural oppression. The reasoning in The Civil Rights Cases is an object study in how to maintain white supremacy—and a mirror to our society today.

The opinion overturned the Civil Rights Act of 1875. It sought to protect recently freed African-American slaves from discrimination in the use of “inns, public conveyances on land or water, theaters, and other places of public amusement.” In striking down this nineteenth-century public accommodations law, thus allowing private businesses to deny services to African Americans because of their race, Justice Joseph P. Bradley, speaking for the 8-1 Supreme Court majority, made three arguments. Continue reading “The Mirror of Racial Tyranny in The Civil Rights Cases”

Two Supreme Court Experts Warn About Impact of Partisan Nomination Fights

Posted on Categories Political Processes & Rhetoric, Public, Speakers at Marquette, U.S. Supreme CourtLeave a comment» on Two Supreme Court Experts Warn About Impact of Partisan Nomination Fights

Two experts on the United States Supreme Court expressed concerns Thursday during an “On the Issues with Mike Gousha” program at Marquette Law School that the level of partisanship in confirmation processes for justices is causing damage to the court itself.

David A. Strauss, the Gerald Ratner Distinguished Service Professor of Law at the University of Chicago, said, “Things have become a lot more partisan in a way that I think is really damaging for the court as an institution.”

Strauss said, that, even though partisanship has long been a part of confirming court nominees, among senators overall, “there was a consensus that we really have to kind of make sure that we take care of the court.” That meant approving well-qualified candidates who would be respected and do their jobs well, with less attention paid to their partisanship. That has eroded, he said.

“I think it has taken a turn for the much more partisan,” Strauss said. ”What’s really troubling about it . . . Once that happens, it is very hard to dig yourself out of it.” Continue reading “Two Supreme Court Experts Warn About Impact of Partisan Nomination Fights”

Supreme Court Navigates Two Water Disputes, With More On The Way

Posted on Categories Environmental Law, Public, U.S. Supreme Court, Water LawLeave a comment» on Supreme Court Navigates Two Water Disputes, With More On The Way

On Monday the Supreme Court heard arguments in two interstate water allocation disputes, Florida v. Georgia and Texas v. New Mexico and Colorado. The Court has also accepted a third such case, Mississippi v. Tennessee, and assigned it to a special master. The cases will force the Court to examine the The Rio Grande River near the USA-Mexico borderbalance between economic development and environmental protection, the federal role in state water disputes, and whether groundwater and surface water allocation should be governed by the same decisional rules.

The trio of pending cases belies the Court’s expressed preference for such disputes to be resolved by interstate compacts entered into pursuant to the Compact Clause (Article I, Section 10, Clause 3). It has previously commented that it approaches interstate water disputes with caution given the “complicated and delicate questions” involved, and has advised “expert administration [via a compact] rather than judicial imposition of a hard and fast rule.”[1] Nevertheless, in these cases at least, an old adage often attributed to Mark Twain trumped the Court’s advice: “whiskey is for drinking, and water is for fighting over.”

Continue reading “Supreme Court Navigates Two Water Disputes, With More On The Way”

New Cases on the Constitutionality of Long Sentences for Juveniles: The Graham Saga Continues

Posted on Categories Constitutional Interpretation, Constitutional Law, Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Federalism, Public, U.S. Supreme CourtLeave a comment» on New Cases on the Constitutionality of Long Sentences for Juveniles: The Graham Saga Continues

In Graham v. Florida, 560 U.S. 48 (2010), the U.S. Supreme Court barred the sentence of life without the possibility of parole (LWOP) for crimes committed by anyone under eighteen years of age. Grounded in the Cruel and Unusual Punishments Clause of the Eighth Amendment, the Court’s holding recognized only one exception: juvenile LWOP might be permissible in cases involving homicide.

Despite its seemingly straightforward character, the Graham holding has spawned considerable litigation in the lower courts over its scope and application. Two interesting appellate decisions from last month highlight some of the difficulties.

In the first, U.S. v. Mathurin, the Eleventh Circuit had to consider whether a 685-month prison term should be treated as the functional equivalent of an LWOP sentence for Eighth Amendment purposes.   Continue reading “New Cases on the Constitutionality of Long Sentences for Juveniles: The Graham Saga Continues”

Right to Counsel: One Step Forward, Two Steps Back

Posted on Categories Constitutional Law, Criminal Law & Process, Federalism, Public, U.S. Supreme CourtLeave a comment» on Right to Counsel: One Step Forward, Two Steps Back

A photo of the Supreme CourtAs part of its end-of-term flurry, the U.S. Supreme Court issued three notable decisions in the past week on the criminal defendant’s right to effective assistance of counsel. The results were a mixed bag.

First, the step forward: in Lee v. United States, the Court strengthened the defendant’s right to accurate legal advice in relation to plea bargaining. Lee, a South Korean who resided lawfully in the U.S. for more than three decades, faced a federal charge of possession with intent to distribute ecstasy. His attorney advised him that he would likely get a lighter sentence if he pleaded guilty, but Lee was concerned that he would be deported if convicted; deportation, not prison, seems to have been his primary concern. Lee’s lawyer assured him that he would not be deported, so Lee agreed to the guilty plea. However, the lawyer was wrong — Lee faced mandatory deportation as a result of his conviction. When Lee found out, he sought to withdraw his guilty plea on the basis of ineffective assistance of counsel.

The lower courts rejected his motion. For Lee to show a violation of his constitutional right to effective assistance of counsel, he was required to demonstrate both deficient performance by this attorney and prejudice. The lower courts seemed to accept that Lee’s lawyer performed poorly, but held that Lee could show no prejudice since he had no viable defense if the case had gone to trial. In other words, even with better information, Lee would have been convicted and deported anyway.

The Supreme Court reversed, holding that prejudice can be established in some cases based on the lost opportunity to have a trial, without regard to the likely outcome of that trial. 

Continue reading “Right to Counsel: One Step Forward, Two Steps Back”

Supreme Court Dodges Long-Running Dispute Over Defendant’s Right to Psychiatric Expert

Posted on Categories Criminal Law & Process, Poverty & Law, Public, U.S. Supreme CourtLeave a comment» on Supreme Court Dodges Long-Running Dispute Over Defendant’s Right to Psychiatric Expert

A photo of the Supreme CourtThree decades ago, in Ake v. Oklahoma, the Supreme Court held that indigent criminal defendants have a constitutional right of access to a psychiatric expert in some cases. More specifically, the Court stated, “[W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” 470 U.S. 68, 83 (1985).

This seemingly straightforward holding has spawned a number of long-running disputes in the lower courts. Among the more important lingering questions is this: May a state satisfy its obligation under Ake by supplying the defendant with access to a neutral expert who is equally available to both sides, or must the state engage an expert who will truly serve as a member of the defense team? Of course, a wealthy defendant would almost always be well-advised to hire his own expert, rather than merely relying on a neutral, but Ake does not necessarily guarantee that poor defendants will have all of the advantages of their rich counterparts.

With the lower courts split on this question, the Supreme Court finally seemed poised to provide a definitive answer this term in McWilliams v. DunnHowever, when the Court issued its McWilliams decision earlier this week, the justices actually ruled in the defendant’s favor on quite narrow, case-specific grounds, leaving the big question about the acceptability of a neutral expert unanswered.

Whenever the Court gets around to answering the question — and, given the way that matters were resolved this week, McWilliams itself could well provide the vehicle on a return trip to the Court — the justices will confront a difficult issue that touches more generally on the role of experts in an adversarial system of justice, and even on the very nature of scientific knowledge.

Our ideal for science is objective knowledge. We hope that scientists will develop analytical methods that will invariably yield the same conclusion as to the same subject, regardless of who is doing the analysis.

If tests for mental illness are “scientific” in this sense, then there seems little unfairness in limiting the defendant to a neutral psychiatrist. The only way in which having an expert on the defense team might change the outcome would be if the defendant’s “hired gun” were dishonest or incompetent — and there surely cannot be a constitutional right to mislead the jury with bad science.

Thus, the claim that the defendant should have his own expert seems implicitly grounded in a belief — accurate, I should think — that psychiatric diagnosis does not always fit that ideal of wholly objective and indisputable conclusions. In the American legal tradition, of course, we look to adversarial process to determine the truth when there are two conflicting, but both still plausible, versions of reality available. Thus, if reasonable psychiatrists could differ over a defendant’s diagnosis, it seems natural to fall back on adversarial process and give each side an opportunity to make the best case possible for its version of reality, including with its own expert witness. We are accustomed to think that the truth will emerge from such an adversarial clash.

And, yet, there is something disquieting about this picture. When we ask a jury to choose between two competing stories about what a defendant did, we count on the jury to use its common sense and life experience to decide which version of reality is more plausible. But, when the question instead relates to what was going on in the defendant’s head, it is not so clear that common sense and life experience are up to the challenge. After all, the essence of the defendant’s claim is that his brain was not working in a way that is familiar to most lay people in their day-to-day lives. The very reason we bring experts to bear to try to deal with the issue makes lay jurors seem unqualified to pick between the two different versions of reality being presented.

There does seem a dilemma here. If we use only a single, nominally neutral expert, then the jury may be left with a sense in some cases that the science is more certain and one-sided than it really is. On the other hand, if we arm each side with its own expert, then we implicitly ask the jury to perform a task for which it is ill-equipped — adjudicating the scientific quality of competing expert opinions. There may be ways of alleviating the concerns — e.g., through use of a neutral panel of experts — but such approaches tend to raise cost and other practical difficulties.

Perhaps the conundrum helps to explain why the Court has not seemed anxious to resolve the big question that was posed by McWilliams.

Dark Clouds on the Horizon for Graham v. Florida?

Posted on Categories Criminal Law & Process, Public, U.S. Supreme CourtLeave a comment» on Dark Clouds on the Horizon for Graham v. Florida?

A photo of the Supreme CourtIn 2010, the Supreme Court ruled in Graham v. Florida that a juvenile sentenced to life in prison for a nonhomicide crime must be given “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” But what makes a release opportunity “meaningful”? The Court’s decision yesterday in Virginia v. LeBlanc suggests that the threshold may not be as high as some hoped.

LeBlanc was convicted of committing a rape when he was 16 and sentenced to life in prison without the possibility of conventional parole. On the face of it, this would seem a clear violation of Graham. However, in federal habeas proceedings, the state argued that LeBlanc would eventually have his “meaningful opportunity” through a geriatric release program, which permits the release of some inmates who are age sixty or older.

Since many other states also have geriatric release programs, the issue presented by LeBlanc has important, national ramifications for the strength of the Eighth Amendment right recognized in Graham.

A district judge and then a panel of the Fourth Circuit held in LeBlanc’s favor. The Fourth Circuit noted the highly discretionary nature of geriatric release under Virginia law, which effectively permits the releasing authority to disregard an applicant’s “demonstrated maturity and rehabilitation,” contrary to Graham. 841 F.3d 256, 269 (4th Cir. 2016).

Yet, the Supreme Court reversed yesterday in a brief per curiam opinion.   Continue reading “Dark Clouds on the Horizon for Graham v. Florida?”