In what turned out to be one of the most important days in American history, Supreme Court Associate Justice Anthony Kennedy announced his resignation from the Bench after more than thirty years of service. The 1987 appointee of President Ronald Reagan hand delivered President Donald Trump a resignation letter that stated:
My dear Mr. President,
This letter is a respectful and formal notification of my decision, effective July 31 of this year, to end my regular active status as an Associate Justice of the Supreme Court, while continuing to serve in a senior status, as provided in 28 U.S.C 371 (b).
For a member of the legal profession it is the highest of honors to serve on this Court. Please permit me by this letter to express my profound gratitude for having had the privilege to seek in each case how best to know, interpret, and defend the Constitution and the laws that must always conform to its mandates and promises.
Respectfully and sincerely,
Anthony Kennedy
The Republican National Lawyers Association (RNLA) honors Supreme Court Justice Anthony Kennedy, who announced his retirement from the Supreme Court today. In his over 30 years on the Court, he has written some of the most seminal opinions in modern jurisprudence, and he will be remembered as one of the most important Supreme Court justices in American history.
Justice Kennedy’s retirement leaves an important vacancy on the Supreme Court, and President Donald Trump will now have the opportunity to nominate a new Supreme Court justice from his superb list of potential Supreme Court nominees who respect the text of the Constitution and the role of the Court. While Senate Democrats have obstructed and delayed President Trump’s judicial nominees whenever possible, we trust that President Trump’s nominee will be vetted and confirmed due to the strong leadership of Senate Judiciary Committee Chairman Chuck Grassley and Majority Leader Mitch McConnell.
RNLA President Elliot Berke stated: “Since he was appointed by President Reagan in his second term, Justice Kennedy has been an important voice on the Court. We wish him nothing but the best in retirement. President Trump has mentioned many excellent candidates to replace Justice Kennedy, and we urge the Senate to not play politics but consider his nominee in as expedient a manner as possible.”
RNLA Chair John Ryder agreed: “Justice Kennedy has been a champion of First Amendment rights from political speech to the free exercise of religion. His voice and views have made a great contribution to our understanding of the Constitution."
Senate Majority Leader Mitch McConnell praised Justice Kennedy, particularly for his work in defending the First Amendment:
The RNLA has a panel of legal experts available to discuss the retirement and the process for replacing Justice Kennedy.
The RNLA will update this blog post as additional news comes out.
Last updated: June 27, 2018 at 5:00pm.
This morning, the Supreme Court issued its opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Based on his religious beliefs, Colorado baker Jack Phillips refused to create a cake for a same-sex wedding in 2012, and the Colorado Civil Rights Commission, a state Administrative Law Judge, and the Colorado Court of Appeals all found that Phillips had violated the Colorado Anti-Discrimination Act.
Today, the Supreme Court, in a majority opinion by Justice Kennedy, held 7-2 that the Colorado Civil Rights Commission acted with "clear and impermissible hostility" toward Phillips' sincerely held religious beliefs (partially from the syllabus; internal citations omitted):
As the record shows, some of the commissioners
at the Commission’s formal, public hearings endorsed the view that
religious beliefs cannot legitimately be carried into the public sphere
or commercial domain, disparaged Phillips’ faith as despicable and
characterized it as merely rhetorical, and compared his invocation of
his sincerely held religious beliefs to defenses of slavery and the Holocaust.
No commissioners objected to the comments. Nor were they
mentioned in the later state-court ruling or disavowed in the briefs
filed here. The comments thus cast doubt on the fairness and impartiality
of the Commission’s adjudication of Phillips’ case.
Another indication of hostility is the different treatment of Phillips’
case and the cases of other bakers with objections to anti-gay messages
who prevailed before the Commission. The Commission ruled
against Phillips in part on the theory that any message on the requested
wedding cake would be attributed to the customer, not to the
baker. Yet the Division did not address this point in any of the cases
involving requests for cakes depicting anti-gay marriage symbolism.
The Division also considered that each bakery was willing to sell other
products to the prospective customers, but the Commission found
Phillips’ willingness to do the same irrelevant. The State Court of Appeals’ brief discussion of this disparity of treatment does not answer
Phillips’ concern that the State’s practice was to disfavor the religious
basis of his objection.
For these reasons, the Commission’s treatment of Phillips’ case
violated the State’s duty under the First Amendment not to base laws
or regulations on hostility to a religion or religious viewpoint. The
government, consistent with the Constitution’s guarantee of free exercise,
cannot impose regulations that are hostile to the religious beliefs
of affected citizens and cannot act in a manner that passes
judgment upon or presupposes the illegitimacy of religious beliefs
and practices. . . . [T]he record
here demonstrates that the Commission’s consideration of Phillips’
case was neither tolerant nor respectful of his religious beliefs. . . .
The Commission’s hostility was inconsistent with the
First Amendment’s guarantee that our laws be applied in
a manner that is neutral toward religion. Phillips was
entitled to a neutral decisionmaker who would give full
and fair consideration to his religious objection as he
sought to assert it in all of the circumstances in which this
case was presented, considered, and decided. In this case
the adjudication concerned a context that may well be
different going forward in the respects noted above. However
later cases raising these or similar concerns are
resolved in the future, for these reasons the rulings of the
Commission and of the state court that enforced the
Commission’s order must be invalidated.
Justice Thomas, joined by Justice Gorsuch, wrote a concurrence because the Colorado Court of Appeals' "reasoning flouts bedrock principles
of our free-speech jurisprudence and would justify
virtually any law that compels individuals to speak." Justice Gorsuch, joined by Justice Alito, wrote separately to respond to Justices Ginsburg and Kagan's attempts to defend the Commission's actions (internal citations omitted): "In the face of so much evidence
suggesting hostility toward Mr. Phillips’s sincerely held
religious beliefs, two of our colleagues have written separately
to suggest that the Commission acted neutrally
toward his faith when it treated him differently from the
other bakers—or that it could have easily done so consistent
with the First Amendment. But, respectfully, I do not see
how we might rescue the Commission from its error."
Whatever one's view of the background social policy debate over same-sex marriage, what happened to Jack Phillips should strike fear into the heart of every liberty-loving person who respects the rule of law. An unelected government commission pre-judged his case according to the commissioners' own beliefs without regard for his constitutional rights. (As a side note, this "bipartisan" commission is currently composed of four Democrats, one Republican, and two independents. Given their outright "hostility" to Mr. Phillips, one can only imagine how fairly they evaluate Republicans that come before them.) The Supreme Court righted this wrong today.
Washington is abuzz with rumors of a possible upcoming Supreme Court vacancy. Many are trying to watch for clues and predict whether a vacancy is impending over the next several weeks. Traditionally, many judges and justices opt to retire at the end of a court's term, which for the U.S. Supreme Court occurs in last week of June.
This morning, The Hill published a story: "Kennedy retirement rumors shift into overdrive."
All eyes are on Justice Anthony Kennedy, 81, who reportedly considered calling it quits last spring. As the court’s current term winds to a close, speculation about his plans has again swept the capital, with court watchers searching for clues.
Those who say Kennedy is here to stay — at least for now — point to the fact that he’s already hired his law clerks for the next term, as Above the Law reported...“I don’t think he would have hired all four clerks for next year if he was seriously entertaining stepping down,” said Carl Tobias, a professor at the University of Richmond School of Law. “I just don’t think it’s going to happen.”
But Ian Samuel, a Climenko fellow and lecturer on law at Harvard Law School, who clerked for the late Justice Antonin Scalia, said the small number of cases the court has granted could signal Kennedy is throwing in the towel. The court has only agreed to hear 15 cases so far next term....“One possibility is they are not granting cases because they don’t know who their ninth member is going to be. … You could imagine Kennedy telling the chief, ‘I’d like to keep this between us, but I’d like to retire,’ and the chief saying, ‘Let’s see who Kennedy’s replacement is before we grant all these cases,’” Samuel said. . .
Of course, this is like reading tea leaves.
But regardless of this, it is important to note that if another vacancy should occur during President Trump's term, President Trump and his Administration are ready. The President already has put out a revised list of twenty-five potential Supreme Court nominees, based upon the list he unveiled on the campaign trail in 2016.
While this version of the list was put out on November 17, 2017, it has been maintained and updated since then (i.e., Judge Stras was just confirmed by the Senate to the Eighth Circuit on January 30th, yet is up-to-date with current position below).
President Donald J. Trump’s Supreme Court List:
- Amy Coney Barrett of Indiana, U.S. Court of Appeals for the Seventh Circuit
- Keith Blackwell of Georgia, Supreme Court of Georgia
- Charles Canady of Florida, Supreme Court of Florida
- Steven Colloton of Iowa, U.S. Court of Appeals for the Eighth Circuit
- Allison Eid of Colorado, U.S. Court of Appeals for the Tenth Circuit
- Britt Grant of Georgia, Supreme Court of Georgia
- Raymond Gruender of Missouri, U.S. Court of Appeals for the Eighth Circuit
- Thomas Hardiman of Pennsylvania, U.S. Court of Appeals for the Third Circuit
- Brett Kavanaugh of Maryland, U.S. Court of Appeals for the District of Columbia Circuit
- Raymond Kethledge of Michigan, U.S. Court of Appeals for the Sixth Circuit
- Joan Larsen of Michigan, U.S. Court of Appeals for the Sixth Circuit
- Mike Lee of Utah, United States Senator
- Thomas Lee of Utah, Supreme Court of Utah
- Edward Mansfield of Iowa, Supreme Court of Iowa
- Federico Moreno of Florida, U.S. District Court for the Southern District of Florida
- Kevin Newsom of Alabama, U.S. Court of Appeals for the Eleventh Circuit
- William Pryor of Alabama, U.S. Court of Appeals for the Eleventh Circuit
- Margaret Ryan of Virginia, U.S. Court of Appeals for the Armed Forces
- David Stras of Minnesota, U.S. Court of Appeals for the Eighth Circuit
- Diane Sykes of Wisconsin, U.S. Court of Appeals for the Seventh Circuit
- Amul Thapar of Kentucky, U.S. Court of Appeals for the Sixth Circuit
- Timothy Tymkovich of Colorado, U.S. Court of Appeals for the Tenth Circuit
- Robert Young of Michigan, Supreme Court of Michigan (Ret.)
- Don Willett of Texas, Supreme Court of Texas [recently confirmed to the Fifth Circuit]
- Patrick Wyrick of Oklahoma, Supreme Court of Oklahoma
It is noteworthy that several on this list have recently had nominations and confirmation hearings before this Senate (within the last 18 months), including: Coney Barrett, Eid, Larsen, Newsom, Stras, and Thapar.
We will keep an eye on what could become the political battle of the year. Should this occur, the RNLA will be one of the leading sources for all things Supreme Court and judicial nominations.
Today, the Supreme Court heard oral arguments in Janus v. AFSCME, a First Amendment challenge to an Illinois statute requiring non-union members to pay mandatory union dues to the union deemed to represent the non-members' interests in collective bargaining activities.
RNLA Advisory Council member Robert Alt described an irony at the heart of this compelled speech case:
What is surprising is the fact that Mark Janus is personally funding a cadre of high-priced lawyers with one goal: making sure that Mark loses his case. Why would he pay for the lawyers arguing against him? Because he has no choice. Mark is required to pay agency fees to the union, which are used for chargeable expenses like litigation, or he can be fired. And, of course, he is required to pay for political collective bargaining speech, or he can be fired.
This is the real story of the money behind the Janus case—a story of forced contributions for political speech. But the story could have a happy ending. The Supreme Court will hear arguments today in a case that could vindicate the First Amendment rights of millions of Americans like Mark Janus. For Rebecca Friedrichs, for Mark Janus, and for all the workers who are being denied a voice and a choice, let’s hope that the second time is the charm.
Mr. Alt referenced Rebecca Friedrichs, the challenger in the 2016 case that raised the same issue and on which the Supreme Court deadlocked after Justice Scalia passed away a few weeks after oral arguments.
RNLA member Ray LaJeunesse, Jr., summarized the history of compulsory union fees cases at the Supreme Court and gave some highlights of today's oral argument in a Federalist Society teleforum this afternoon:
- Ruling for Janus requires overturning Abood v. Detroit Board of Education, where Justice Powell concurred in the judgment but identified two
flaws in the majority opinion that are at heart of Janus
argument.
- Chicago Teachers Union v. Hudson required that employees must be given adequate advanced notice of fees and basis.
- Knox v. SEIU (2012) –
SEIU local imposed special assessment to oppose two ballot measures after Hudson notice sent; Supreme Court held
additional notice must be sent and no fee could be imposed on non-members
without their consent; compulsory subsidies for private speech are subject to
exacting scrutiny; free-rider arguments insufficient to overcome First
Amendment objections.
- Harris v. Quinn (2014) – majority refused to extend Abood
because analysis was questionable on 6 grounds.
- Friedrichs v. California Teachers Association (2016) –
directly presented question of whether Abood
should be overruled and it was expected to be before Justice Scalia passed away; same question presented as in Janus.
- In Citizens United, Court held it does not hesitate to overrule decisions offensive to the First
Amendment.
- Assuming monopoly bargaining is a compelling government
interest, forced agency fees are not required to achieve that interest as such bargaining occurs at the federal level
and in right to work states without forced fees. Respondents argued that forced fees are not subject to
heightened scrutiny.
- There were competing demonstrations outside the Supreme Court. It was the longest line of
attorneys Mr. LaJeunesse had ever seen to get in to a case - over 100 in line and he was number 77 in the overflow room.
- National Right to Work Legal Defense Foundation attorney Bill Messenger, arguing for Mr. Janus, was 42 seconds into his argument before Justice Ginsburg asked the first
question, about mandatory student fees, bar fees, and private-sector unions. Court in Harris distinguished all those scenarios
(imposed for university’s interest in neutral forum for exchange of ideas,
governmental regulation of practice of law, and private-sector bargaining is not
political like public-sector bargaining).
- Justice Breyer asked about stare decisis, private-sector
bargaining distinction, and Prof. Charles Fried's amicus brief that proposed compromise of different
test for what is chargeable in public sector (charge only for union's statutory
duties); Justice Alito pointed out compromise was not a solution because legislature could make
union monopoly for purposes of lobbying, which California already has done.
- Solicitor General Noel Francisco argued that monopoly bargaining works without force
fees at the federal government and postal service. Justice Kagan asked how many times Trump Admin has switched its
position at Supreme Court in this and other cases; he said 3 times (had faced
question in other cases and appeared prepared for it).
- Illinois Solicitor General David Franklin was questioned closely by Justices Alito and Kennedy,
both or whom clearly still ascribe to their opinion in Harris. Justice Roberts asked whether it would make unions more responsive
if they had to attract voluntary support (indicates his continued support for Harris opinion as well). Justice Breyer brought up Prof. Fried's potential compromise again.
- Appellate lawyer David Frederick argued for the union and was again questioned
closely by Justices Alito and Kennedy. Justice Kennedy asked if this case would affect the political influence
of unions if the Court rules for Janus, Frederick said “yes,” and Kennedy said, isn’t that
the end of the case? Justice Roberts asked how union negotiations over a collective bargaining agreement not affect
state budget? Mr. Frederick answered that they do.
- Mr. Frederick said there is real reliance here because there is a
trade-off of agreeing not to strike in the collective bargaining agreement. Mr. Messenger in rebuttal said that in other words, the scheme
is racket protection, paying the union to ensure lack of uprising against the
government and that grievance processing to enforce public policy according to the collective bargaining agreement is as much
advocacy as making the agreement.
- Throughout the arguments, Justices Breyer and Kennedy were most active questioners. Notably, Justice Gorsuch did not ask any questions.
The oral argument transcript is here. While this case may be released at the end of the term like many other important cases are, Mr. LaJeunesse noted that opinions may have already been drafted and circulated for the Friedrichs case and the lines for all of the justices except Justice Gorsuch were already drawn in Harris, which might expedite the release of the decision. This case will have serious implications for the free speech rights of public employees and their importance constitutional right against compelled speech.
Yesterday, the Supreme Court handed down another opinion as it winds down its 2016 Term. The opinion issued today was Matal v. Tam, also known as "The Slants" case. The crux of this case was whether the U.S. Government could withhold trademark protection from words or terms that could offend society, in the opinion of government bureaucrats. Resoundingly, the Court declared, "No!" in an 8-0 decision. Both wings of the Court met at the middle, albeit emphasizing different means to get there.
Justice Alito authored the opinion of the Court, which was joined by the conservatives members of the Court. He stated:
[The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”
We have said time and again that “the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” Street v. New York, 394 U. S. 576, 592 (1969). See also Texas v. Johnson, 491 U. S. 397, 414 (1989) (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable”) [more cases omitted] …
Justice Kennedy authored a separate concurrence, which the liberal members of the Court signed on to as well:
A law found to discriminate based on viewpoint is an “egregious form of content discrimination,” which is “presumptively unconstitutional.” …
A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.
Here, both wings of the Court arrived at the same end: more free speech is better than less; the "Good" will drown out the "Bad."
However, in the state of play, the left is working to silence multiple viewpoints before they can even be heard. Case in point: the left's disparaging comments about Presidential Advisory Commission on Election Integrity before the commission has even been convened. Allow the commission to do it job and assess the situation--then, there can be a true and free debate about the findings.
