Vice President Pence Calls RNLA Members to Action for Kavanaugh

On Friday Vice President Mike Pence addressed the RNLA and issued a call to action to confirm Judge Brett Kavanaugh to the Supreme Court.  Vice President Pence stated:

We're going to fight to take his case all the way to confirmation. We need your help. We need your continued engagement. We need the RNLA, not just those of you who came to the lunch today, but your 6,000 members, who are leaders in your community, to get out and spread the word among your peers. Spread the word in every state in the nation. Get the word to every Senator from every state about what Judge Brett Kavanaugh brings.

He also spoke on the qualifications of Judge Kavanaugh:

Judge Kavanaugh graduated from Yale Law School, fellow in the United States Solicitor General’s office, clerked in the Third Circuit, and then he clerked for the man who he would be replacing on the Supreme Court, Justice Anthony Kennedy. He also served as Associate Counsel at the White House. And since 2006 served on what many regard as the second highest court in the land, the Court of Appeals of the District of Columbia. 

During his time on the bench, Judge Kavanaugh has been called a judges’ judge. A stunning 39 of his 48 clerks have gone on to clerk at the Supreme Court. His peers in the judiciary rightly see him as a thought leader. His opinions are cited by courts across the country on a regular basis. And the Supreme Court has endorsed Judge Kavanaugh’s opinions more than a dozen times. I think that’s worth a round of applause. 

And the truth is Judge Brett Kavanaugh has established a record of enormous weight and credibility on the bench. He’s written 307 opinions and they have proven not only the strength of his intellect but also you can see he has a crystal clear judicial philosophy and fidelity to the Constitution of the United States. Judge Kavanaugh has proven his support for our first freedom, religious liberty. He stood for the Second Amendment’s right to keep and bear arms. He's always enforced the Constitution's clear and unambiguous limits on government power, upholding the separation of powers, checks and balances, the principle of federalism that’s essential to our freedom. The truth is, Judge Brett Kavanaugh supports the principles of limited government enshrined by our founders in the Constitution of the United States of America. He is a textualist and an originalist.

He thanked the RNLA for its help in the past and reminded us that President Trump's last Supreme Court nominee was a former RNLA Member, Neil Gorsuch:

The men and women in this room have been supporting judicial nominees across the board.  You and your peers across the county made our case in your states, with your peers and in the public debate. The President and I are truly grateful for everything you've done. 

In fact, I know you're particularly grateful that we've also nominated a number of RNLA members into positions on the courts around the country, including one who ended up serving with distinction on the 10th Circuit Court of Appeals, a former RNLA member by the name of Justice Neil Gorsuch.  What a great guy.   In nominating Justice Gorsuch, President Trump kept his word; kept his word to appoint a justice in the mold of the late and great Justice Antonin Scalia. And frankly seeing the early days of his tenure on the Supreme Court of the United States, Justice Gorsuch has already proven, already proven himself for the trust the President has placed in him, in his commitment to the Constitution and the principles of limited government that are enshrined there. President Donald Trump and I could not be more proud of Justice Gorsuch.

We also cannot be more proud of the next Justice of the Supreme Court of the United States Judge Brett Kavanaugh.

It is really important that as lawyers, RNLA members do their best to live up to the praise and fight for Judge Kavanaugh and “make the case.”  Please sign our letter supporting Judge Kavanaugh here.      

Supreme Court Upholds TX Congressional District Lines for All Except One District

Today, the Supreme Court issued a decision in Abbott v. Perez, a racial gerrymandering challenge out of Texas.  The Court held that the lower court had used an improper intent analysis to invalidate congressional and state house district maps, that the lower court had improperly applied the “effects” test of Section 2 of the Voting Rights Act to invalidate three districts, and that the fourth challenged district was an impermissible racial gerrymander because the state did not prove narrow tailoring in its use of race.

Justice Alito wrote for the five-justice majority, noting that district map challengers bear the burden of showing discriminatory intent (citations omitted):

We now hold that the three-judge court committed a fundamental legal error. It was the challengers’ burden to show that the 2013 Legislature acted with discriminatory intent when it enacted plans that the court itself had produced. The 2013 Legislature was not obligated to show that it had “cured” the unlawful intent that the court attributed to the 2011 Legislature. Thus, the essential pillar of the three-judge court’s reasoning was critically flawed. . . . 

The court refused to accept this conclusion, but its reasons for doing so cannot stand up. As an initial matter, the court thought that the two districts would have to be redrawn based on its finding regarding the intent of the 2013 Legislature, and it therefore deferred a final decision on the §2 issue and advised the plaintiffs to consider at the remedial phase of the case whether they preferred to have two districts that might not perform or just one safe district. The court’s decision cannot be sustained on this ground, since its finding of discriminatory intent is erroneous. 

The only other reason provided by the court was the observation that [Mexican-American Legal Caucus] “failed to show” that two majority-Latino districts in Nueces County would not perform. This observation twisted the burden of proof beyond recognition. It suggested that a plaintiff might succeed on its §2 claim because its expert failed to show that the necessary factual basis for the claim could not be established. Courts cannot find §2 effects violations on the basis of uncertainty. In any event, if even the District Court remains unsure how to draw these districts to comply with §2 (after six years of litigation, almost a dozen trials, and numerous opinions), the Legislature surely had the “ ‘broad discretion’ ” to comply as it reasonably saw fit in 2013.

With regard to the invalidated district (citations omitted):

By contrast, where we have accepted a State’s “good reasons” for using race in drawing district lines, the State made a strong showing of a pre-enactment analysis with justifiable conclusions. In Bethune-Hill, the State established that the primary map drawer “discussed the district with incumbents from other majority-minority districts[,]. . . considered turnout rates, the results of the recent contested primary and general elections,” and the district’s large prison population.  The State established that it had performed a “functional analysis,” and acted to achieve an “informed bipartisan consensus.” Texas’s showing here is not equivalent.

Perhaps Texas could have made a stronger showing, but it is the State’s burden to prove narrow tailoring, and it did not do so on the record before us. We hold that HD90 is an impermissible racial gerrymander. On remand, the District Court will have to consider what if any remedy is appropriate at this time. 

Also worth noting, the Court found that though the lower court did not label its order as an injunction, it functioned as an injunction and the lower court could not avoid review under 28 U.S.C. § 1253 by labeling the order something other than an injunction.

Justice Thomas has been alone in saying that Section 2 of the Voting Rights Act cannot justify using race in redistricting and that therefore requiring legislatures to form majority-minority districts by considering race is impermissible.  But today, Justice Gorsuch joined his concurrence in Abbott reiterating that stance, which may prove very important in future racial gerrymandering cases at the Supreme Court.

The Court also vacated and remanded Rucho v. Common Cause, a partisan gerrymandering challenge out of North Carolina that many liberals are hoping will meet the standing requirements of Gill v. Whitford, back to the district court for further proceedings in light of Gill.

While it may seem that little was decided today, the Court's reiteration of the appropriate burden of proof in redistricting cases is vital to courts consistently deciding redistricting cases according to actual legal principles.

Supreme Court Strikes Blow to Unaccountable Bureaucracy in Lucia v. SEC

This morning, the Supreme Court issued a decision in Lucia v. Securities and Exchange Commission, holding that the SEC's administrative law judges are "officers of the United States" subject to the Appointments Clause of the Constitution.  (We covered this topic and case in a breakout panel at our National Policy Conference in April.)  Justice Kagan wrote for the Court (citations omitted):

The sole question here is whether the Commission’s ALJs are “Officers of the United States” or simply employees of the Federal Government. The Appointments Clause prescribes the exclusive means of appointing “Officers.” Only the President, a court of law, or a head of department can do so.  And as all parties agree, none of those actors appointed Judge Elliot before he heard Lucia’s case; instead, SEC staff members gave him an ALJ slot. So if the Commission’s ALJs are constitutional officers, Lucia raises a valid Appointments Clause claim. The only way to defeat his position is to show that those ALJs are not officers at all, but instead non-officer employees—part of the broad swath of “lesser functionaries” in the Government’s workforce. For if that is true, the Appointments Clause cares not a whit about who named them. . . . 

For all the reasons we have given, and all those Freytag gave before, the Commission’s ALJs are “Officers of the United States,” subject to the Appointments Clause.

This decision will help SEC ALJs be more accountable, as they will need to be appointed by a politically accountable person instead of just agency staff.  Justices Thomas and Gorsuch concurred to analyze the original public meaning of "officer" (citations omitted):

The Appointments Clause provides the exclusive process for appointing “Officers of the United States.” While principal officers must be nominated by the President and confirmed by the Senate, Congress can authorize the appointment of “inferior Officers” by “the President alone,” “the Courts of Law,” or “the Heads of Departments.”  

This alternative process for appointing inferior officers strikes a balance between efficiency and accountability. Given the sheer number of inferior officers, it would be too burdensome to require each of them to run the gauntlet of Senate confirmation. But, by specifying only a limited number of actors who can appoint inferior officers without Senate confirmation, the Appointments Clause maintains clear lines of accountability—encouraging good appointments and giving the public someone to blame for bad ones. 

The Founders likely understood the term “Officers of the United States” to encompass all federal civil officials who perform an ongoing, statutory duty—no matter how important or significant the duty.  “Officers of the United States” was probably not a term of art that the Constitution used to signify some special type of official. . . . The Founders considered individuals to be officers even if they performed only ministerial statutory duties—including recordkeepers, clerks, and tidewaiters (individuals who watched goods land at a customhouse).  Early congressional practice reflected this understanding. With exceptions not relevant here, Congress required all federal officials with ongoing statutory duties to be appointed in compliance with the Appointments Clause. 

Applying the original meaning here, the administrative law judges of the Securities and Exchange Commission easily qualify as “Officers of the United States.” These judges exercise many of the agency’s statutory duties, including issuing initial decisions in adversarial proceedings. As explained, the importance or significance of these statutory duties is irrelevant. All that matters is that the judges are continuously responsible for performing them.

Also worth noting is Justice Gorsuch's concurrence in today's South Dakota v. Wayfair decision:

My agreement with the Court’s discussion of the history of our dormant commerce clause jurisprudence, however, should not be mistaken for agreement with all aspects of the doctrine. The Commerce Clause is found in Article I and authorizes Congress to regulate interstate commerce. Meanwhile our dormant commerce cases suggest Article III courts may invalidate state laws that offend no congressional statute. Whether and how much of this can be squared with the text of the Commerce Clause, justified by stare decisis, or defended as misbranded products of federalism or antidiscrimination imperatives flowing from Article IV’s Privileges and Immunities Clause are questions for another day.

Justice Gorsuch consistently compares court decisions and doctrines to the Constitution, with an eye to the appropriate role of the courts, to determine whether they are correct.  Justices Thomas and Gorsuch are constantly pointing the Supreme Court to the text of the Constitution, its original meaning, and the proper role of the courts in our system of federalism and the separation of powers.

Supreme Court Stays Out of Partisan Gerrymandering Cases - For Now

In a victory - at least for now - for courts staying out of partisan gerrymandering disputes, the Supreme Court today decided two of the three redistricting cases pending before it.

In Gill v. Whitford, a challenge to Wisconsin's congressional district map, the Court unanimously dismissed the case for lack of standing (citations omitted):

Certain of the plaintiffs before us alleged that they had such a personal stake in this case, but never followed up with the requisite proof. The District Court and this Court therefore lack the power to resolve their claims. We vacate the judgment and remand the case for further proceedings, in the course of which those plaintiffs may attempt to demonstrate standing in accord with the analysis in this opinion. . . . 

Regarding standing, the court held that the plaintiffs had a “cognizable equal protection right against stateimposed barriers on [their] ability to vote effectively for the party of [their] choice.” It concluded that Act 43 “prevent[ed] Wisconsin Democrats from being able to translate their votes into seats as effectively as Wisconsin Republicans,” and that “Wisconsin Democrats, therefore, have suffered a personal injury to their Equal Protection rights.” The court turned away the defendants’ argument that the plaintiffs’ injury was not sufficiently particularized by finding that “[t]he harm that the plaintiffs have experienced . . . is one shared by Democratic voters in the State of Wisconsin. The dilution of their votes is both personal and acute.” . . . 

In cases where a plaintiff fails to demonstrate Article III standing, we usually direct the dismissal of the plaintiff ’s claims. This is not the usual case. It concerns an unsettled kind of claim this Court has not agreed upon, the contours and justiciability of which are unresolved. Under the circumstances, and in light of the plaintiffs’ allegations that Donohue, Johnson, Mitchell, and Wallace live in districts where Democrats like them have been packed or cracked, we decline to direct dismissal.  

We therefore remand the case to the District Court so that the plaintiffs may have an opportunity to prove concrete and particularized injuries using evidence—unlike the bulk of the evidence presented thus far—that would tend to demonstrate a burden on their individual votes. We express no view on the merits of the plaintiffs’ case. We caution, however, that “standing is not dispensed in gross”: A plaintiff ’s remedy must be tailored to redress the plaintiff ’s particular injury. 

While this may seem like the Court side-stepped the issues in the case, the standing decision was integral to the court's deciding in favor of the plaintiffs below.  By reversing the court's questionable conclusions on standing being shown through statewide partisan voting results, the Court today made it more difficult for future claimants to bring claims under such novel legal theories by properly placing the evidentiary burden on map challengers to show concrete and particularized injury.  (It is also worth noting that the length of Justice Roberts' opinion for the Court demonstrates how complicated standing doctrine and the law in general are in the area of redistricting.)  This is clear in the liberal justices' concurrence.

Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, lamented that the plaintiffs did not argue the case appropriately to let the Court decide questions of proper district lines on political grounds, which liberals are desperate to do (citations omitted):

Partisan gerrymandering, as this Court has recognized, is “incompatible with democratic principles.” More effectively every day, that practice enables politicians to entrench themselves in power against the people’s will. And only the courts can do anything to remedy the problem, because gerrymanders benefit those who control the political branches. None of those facts gives judges any excuse to disregard Article III’s demands. The Court is right to say they were not met here. But partisan gerrymandering injures enough individuals and organizations in enough concrete ways to ensure that standing requirements, properly applied, will not often or long prevent courts from reaching the merits of cases like this one. Or from insisting, when they do, that partisan officials stop degrading the nation’s democracy. . . .

Courts have a critical role to play in curbing partisan gerrymandering. Over fifty years ago, we committed to providing judicial review in the redistricting arena, because we understood that “a denial of constitutionally protected rights demands judicial protection.” Indeed, the need for judicial review is at its most urgent in these cases. For here, politicians’ incentives conflict with voters’ interests, leaving citizens without any political remedy for their constitutional harms. Of course, their dire need provides no warrant for courts to disregard Article III. Because of the way this suit was litigated, I agree that the plaintiffs have so far failed to establish their standing to sue, and I fully concur in the Court’s opinion. But of one thing we may unfortunately be sure. Courts—and in particular this Court—will again be called on to redress extreme partisan gerrymanders. I am hopeful we will then step up to our responsibility to vindicate the Constitution against a contrary law.  

Justices Thomas and Gorsuch concurred but would have dismissed the case without allowing the plaintiffs another attempt at proving standing.

In a per curiam decision in Benisek v. Lamone, the Court affirmed a district court decision not to issue a preliminary injunction on a First Amendment retaliation partisan gerrymandering challenge to a single district in Maryland (citations omitted):

In addition, the District Court emphasized that it was concerned about “measuring the legality and constitutionality of any redistricting plan in Maryland . . . according to the proper legal standard.” In the District Court’s view, it would be “better equipped to make that legal determination and to chart a wise course for further proceedings” after this Court issued a decision in Gill. Plaintiffs ask this Court to vacate the District Court’s order and remand for further consideration of whether a preliminary injunction is appropriate. . . .

Even if we assume—contrary to the findings of the District Court— that plaintiffs were likely to succeed on the merits of their claims, the balance of equities and the public interest tilted against their request for a preliminary injunction. . . .  

On top of this time constraint was the legal uncertainty surrounding any potential remedy for the plaintiffs’ asserted injury. At the time the District Court made its decision, the appeal in Gill was pending before this Court. The District Court recognized that our decision in Gill had the potential to “shed light on critical questions in this case” and to set forth a “framework” by which plaintiffs’ claims could be decided and, potentially, remedied. . . . In these particular circumstances, we conclude that the District Court’s decision denying a preliminary injunction cannot be regarded as an abuse of discretion.

One line in Benisek regards the fact that the plaintiffs did not challenge the 2011 district map until 2016 (emphasis added):

In considering the balance of equities among the parties, we think that plaintiffs’ unnecessary, years-long delay in asking for preliminary injunctive relief weighed against their request.

This may prove to be extremely important in future litigation, as Democrats and liberals are still filing new cases challenging the maps enacted after the 2010 census.

But for now, the Supreme Court has decided to stay out of partisan gerrymandering claims, against the wishes of its liberal members to use the Court to judge the wisdom of political balances of power in the states.  That is a temporary victory for the proper role of the courts, temporary only because the liberals and Democrats will continue to bring these claims until the Court issues a decision explicitly barring courts from deciding them.  But today's decisions in Gill and Benisek have established justiciability standards that raise the bar for bringing those claims.

Supreme Court Issues Opinion in Masterpiece Cakeshop First Amendment Case

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.

Justice Gorsuch: One Year on the Bench

Just over a year ago, Justice Neil Gorsuch was confirmed by the Senate as the 101st Associate Justice of the United States Supreme Court. 

Justice Gorsuch has quickly become a leading and reliable voice for conservatives on the top court. He has joined the Court in hearing 60 cases in his first year, where he has drafted three opinions and many more concurrent opinions and dissenting opinions. 

In Business Insider this weekend, they noted about his writing style thus far:

Frequent readers of Gorsuch's writing as a justice say his style is designed to attract attention and reach an audience beyond law professors and experts...

Earlier this year Gorsuch began a dissent by citing English writer G.K. Chesterton, an opening that drew mixed reviews. He started an opinion involving water rights with a humorous quote attributed to actor Will Rogers, who is said to have called the Rio Grande "the only river I saw that needed irrigation.". . 

Opinion writing isn't new for Gorsuch, who spent a decade as a federal appeals court judge before joining the Supreme Court. Now, however, it comes with higher stakes and a broader audience. . . 

Business Insider continued, by noting other interesting hallmarks of Justice Gorsuch during his first year:

Since joining the court, Gorsuch has joined Justice Clarence Thomas as one of conservatives' favorite justices, fully agreeing with Thomas in 14 of the 17 cases in which the court has not been unanimous, according to statistics compiled in part by the website SCOTUSblog. . . 

[Justice] Scalia was from the outset of his time as a justice an aggressive questioner during arguments. Gorsuch is less dominant. So far this term he has asked an average of 16 questions per argument, the third highest average among the nine justices, according to SCOTUSblog. 

Gorsuch has made the courtroom audience laugh 11 times this term. That puts him in fifth place for laugh-getting by a justice, according to Boston University law professor Jay Wexler. One such moment came during arguments in a case about a baker who cited his religious beliefs in refusing to make a wedding cake for a gay couple. Gorsuch noted he's never had "a wedding cake that I would say tastes great."

The RNLA congratulates Justice Gorsuch on his first year on the Supreme Court Bench. We look forward to tracking his legacy as well as this term's biggest cases, which will surely be impacted by Justice Gorsuch's wisdom and wit.

Justices Thomas and Gorsuch Question Deference to Agency Interpretations in Dissent

Last week, Justice Clarence Thomas and Justice Neil Gorsuch dissented from a denial of certiorari in Garco Construction v. Speer.  They would have granted cert to determine whether Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., and the deference to agencies' interpretation of their own regulations and rules contained in them, should be overruled.  Their dissent is a succinct indictment of this deference to administrative agencies' interpretations and a defense of the separation of powers (internal citations and notes omitted):

Seminole Rock and Auer require courts to give “controlling weight” to an agency’s interpretation of its own regulations. To qualify, an agency’s interpretation need not be “the best” reading of the regulation. It need only be a reading that is not “plainly erroneous or inconsistent with the regulation.” Although Seminole Rock deference was initially applied exclusively “in the price control context and only to official agency interpretations,” this Court has since expanded it to many contexts and to informal interpretations.  

Seminole Rock deference is constitutionally suspect. It transfers “the judge’s exercise of interpretive judgment to the agency,” which is “not properly constituted to exercise the judicial power.” It also undermines “the judicial ‘check’ on the political branches” by ceding the courts’ authority to independently interpret and apply legal texts. And it results in an “accumulation of governmental powers” by allowing the same agency that promulgated a regulation to “change the meaning” of that regulation “at [its] discretion.” This Court has never “put forward a persuasive justification” for Seminole Rock deference.  

By all accounts, Seminole Rock deference is “on its last gasp.” Several Members of this Court have said that it merits reconsideration in an appropriate case. Even the author of Auer came to doubt its correctness.  

This would have been an ideal case to reconsider Seminole Rock deference, as it illustrates the problems that the doctrine creates. . . . Because this Court has passed up another opportunity to remedy “precisely the accumulation of governmental powers that the Framers warned against,” I respectfully dissent from the denial of certiorari.  

Thank you, Justice Thomas and Justice Gorsuch, for defending the rule of law against otherwise unaccountable federal agencies.  We can only hope that soon the rest of the Court joins in restoring the proper balance of power between the branches of government. 

The Supreme Court in Crisis: A Good Read, But No Crisis

RNLA Member Donald Daugherty recently conducted a book review published by the Federalist Society on American Justice 2017: The Supreme Court in Crisis by Kimberly Robinson.

Ms. Robinson's book offers a summary and background insight into the 2016 Term of the Supreme Court by describing various themes from the term, while highlighting various "crises" that allegedly arose--largely referencing the impact of an eight-person bench, with the absence of Justice Scalia for the majority of the term, prior to the swearing in of Justice Gorsuch.

Mr. Daugherty explains:

Robinson reviews controversial cases that the Court delayed deciding or sidestepped altogether. Most notable is Trinity Lutheran Church of Columbia v. Comer, for which certiorari was granted a month before Justice Scalia passed in February 2016, but oral argument not held until April 19, 2017—nine days after Neil Gorsuch was sworn in. Robinson also points to the Court declining to review cases involving changes to voting requirements in Texas and North Carolina in the wake of 2013’s Voting Rights Act decision, Shelby County v. Holder. Chief Justice Roberts took the unusual step of explaining why the Court denied certiorari in those cases, which Robinson interprets as protesting too much in anticipation of criticism that the Court was trying to avoid difficult decisions. . . 

Due in large part to its cautious approach, the 2016 Term was marked by an unusually high degree of consensus and a greater-than-usual number of unanimous decisions, with only two dissents read from the bench. Along with the absence of divisive, blockbuster cases, the relative consensus among the justices makes it hard to agree that the Supreme Court was in “crisis.”. . . The Court wisely and prudently chose to put off some of the biggest cases until it returned to full strength. This is not a weakness or shortcoming, as Robinson seem[s] to imply, but reflects a humility that is less often seen in the two political branches. Wisdom and prudence do not necessarily make for an interesting read, however, so the book instead repeatedly refers to various “crises.”. . .

Mr. Daugherty also explains that Robinson's book offers the insight that the U.S. Supreme Court operates in the current political climate, even if it chooses not to wield political power forcefully:

The book’s most interesting chapter is “Courting Politics,” which discusses the Roberts Court’s so-called “one last chance” doctrine for resolving tough constitutional issues on narrow grounds in order to avoid wreaking immediate, widespread havoc; in such decisions, the Court often warns in dicta that without some legislative or other non-judicial fix, the outcome could be different the next time it is faced with the issue. Robinson argues that decisions causing momentous, social disruption risk exposing the Court to criticism that it is merely another political actor. Beginning with Justice Owen Roberts “switch in time” that mooted FDR’s court-packing plan and ended the Lochner era, Robinson cites other possible examples of a politicized Court—Bush v. Gore, National Federation of Independent Business v. Sebelius, Obergefell v. Hodges, and Citizens United v. Federal Elections Commission. At the same time, although the Court is sometimes fairly accused of deciding issues better left to the political branches or the states, this was not a problem in the 2016 Term, and this chapter has little to do with the term specifically. Further emphasizing the anti-climactic nature of the term . . . .

Robinson's book, in closing, offers a preview of what to expect this year as the 2017 Term begins to wind down, but it contrasts one of her themes of the book. Mr. Daugherty notes:

[T]he final chapter’s title—“The Calm Before the Storm”—is at odds with Robinson’s contention that the Court was in crisis during the 2016 Term. Looking ahead, Robinson describes the many high profile cases currently before the Court. Besides Janus and challenges to the third version of the temporary travel ban, the Court is now considering important post-Obergefell issues arising under the First Amendment in Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission, as well as the political blockbuster Gill v. Whitford, which could curb partisan gerrymandering and drastically change how states approach redistricting. Although there is no dispute that the 2017 Term will exceed its predecessor in excitement and controversy, however, Robinson succeeds in turning a sleepy term into an interesting read, even without any real crisis.

Of course, the RNLA will continue to highlight major cases of interest as they come down from now through June. Recently, we have highlighted a few cases we foresee as being highlights of the 2017 Term as well as the redistricting case (Gill v. Whitford) and the recent oral arguments of Janus (union dues v. free speech).

Oral Argument Highlights from Janus v. AFSCME

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.

Reflections on Justice Scalia on the Two-Year Anniversary of His Death

Today marks two years since Justice Antonin Scalia unexpectedly passed from this Earth.  His impact on the legal world was immense, as he was instrumental in returning to a focus on a law's text.

Much could be and has been said about his jurisprudence, his writing style, his strong but friendly personality, the effort led by Senate leadership to allow the people to speak on his successor by keeping his seat open through the election, and how well Justice Gorsuch is living up to President Trump's promise to appoint a successor in the mold of Justice Scalia.  But today, we pause to remember the great man with a few reflections from those who knew him.

In The National Law Journal:

Kannon Shanmugam, former Scalia clerk and head of Williams & Connolly’s Supreme Court and appellate litigation practice: “Even two years on from his death, Justice Scalia remains a powerful influence on the court. His legacy lives on in the court’s approach to constitutional and statutory interpretation. While there are differences in approach among the court’s members, the court largely plays on the playing field that Justice Scalia established.”

Carrie Severino, chief counsel of the conservative Judicial Crisis Network: “There are so many ways in which Justice Scalia’s legacy lives on. He was a leading voice for taking the Constitution seriously that has already inspired generations of lawyers. And his compelling arguments and trenchant prose will continue to shape our approach to the law for generations to come. Justice Gorsuch himself is not only Scalia’s successor but also someone whose approach to the law was formed in a legal environment made possible by Scalia’s leadership on the court. Justice Scalia is sorely missed, but his influence is still very much alive.”  

And on Twitter:

Today is the second anniversary of Justice Antonin Scalia's death. May he rest in peace, may his wife and family continue to be comforted, and may his remarkable legacy continue to grow.

— Ed Whelan (@EdWhelanEPPC) February 13, 2018

Ed Whelan co-edited Scalia Speaks with Justice Scalia's son, Christopher.  It is a fascinating collection of the Justice's speeches, which he delivered to a wide range of audiences on a wide range of topics, and which give insight into the intellectual and philosophical force that was Justice Scalia.  The RNLA has autographed copies of Scalia Speaks available for members to purchase on the Members Only section of the www.rnla.org website, and members can listen to a members-only conference call with Ed Whelan as well.

Rest in peace, Justice Scalia.

Democrats #Resist America During State of the Union

Last night, President Trump delivered his first State of the Union address.  It was a strong speech, focusing on his Administration's accomplishments in the first year and his policy goals to continue making American great again.  As many commentators have noticed, in contrast to President Obama's State of the Union speeches, President Trump focused on "we" instead of "I" and on the greatness of America and the American people.

Of the many first-year accomplishments that President Trump noted, a few are especially noteworthy from a legal perspective (additions to prepared remarks from the delivered speech noted in brackets):

For the last year we have sought to restore the bonds of trust between our citizens and their Government. 

Working with the Senate, we are appointing judges who will interpret the Constitution as written, including a great new Supreme Court Justice, and more circuit court judges than any new administration in the history of our country. 

We are [totally] defending our Second Amendment, and have taken historic actions to protect religious liberty. . . . 

In our drive to make Washington accountable, we have eliminated more regulations in our first year than any administration in [the] history [of our country].

Also notable last night was the sheer recalcitrance of the Democrats.  It is common for the opposing party at State of the Union addresses not to applaud or rise for the President's policy proposals.  But the number of normally non-partisan things for which the Democrats (with a few exceptions) did not applaud or stand is astounding:

• Record-low African-American and Hispanic unemployment (the silence from the Congressional Black Caucus was deafening)
• Infrastructure spending (a perennial Democratic policy proposal)
• Veterans
• The strength of the American people
• Rising wages and prosperity
• Return of jobs to America
• Approval of life-saving medications and treatments (a.k.a. "right to try")
• The entrance and introduction of the President
• The National Anthem
• "In God We Trust" (the official motto of the U.S. by statute)
• Not telling America's enemies our plans and giving aid to allies and not enemies

See here and here.  As Fox News reported, there were a couple exceptions to the scowls from the Democrats: 

Members during the address chose not to stand when Trump honored Louisiana Republican Rep. Steve Scalise and praised his resolve for returning to work less than four months after he “took a bullet” from a gunman and "almost died.” 

And they chose not join in the applause for a 12-year-old boy in the gallery whom Trump praised for putting flags on soldiers’ graves on Veterans Day. 

“Democrats are no longer just the party of resistance and obstruction, they are now also the party of sitting on their hands,” said the Republican National Committee. “No matter the issue, Democrats chose to sit on their hands tonight.” 

There were three notable exceptions among Democrat senators. Joe Manchin, D-W.Va., Joe Donnelly, D-Ind., and Heidi Heitkamp, D-N.D., all red state Democrats facing tough re-election bids in November, stood and applauded multiple times.

Today, Sen. Manchin called out his Democratic colleagues for being "disrespectful," though Sen. Manchin also felt the peer pressure not to applaud or stand at times as well.

So while President Trump delivered a strong speech, highlighting and praising American values and the American people, the Democrats continued their resistance to such an extent that they would not even recognize those shared American values and the value of the American people.  As the President would say, SAD!

President Trump's Superb First Year of Judicial Nominations

Ed Whelan writes about President Trump's superb judicial nominees during his first year in office in the January issue of National Review:

Trump’s most important achievement on the judicial front in 2017 was his appointment of Supreme Court justice Neil Gorsuch to fill the vacancy left by Antonin Scalia’s death in February 2016. That appointment consummated Senate Republican leader Mitch McConnell’s strategy of keeping the vacancy open through the 2016 presidential election, and it resoundingly vindicated the wisdom of that strategy. . . .

In 2017, President Trump also appointed twelve federal appellate judges — a record for a president in his first year in office. . . . Beyond their number, Trump’s appellate appointees have, on the whole, outstanding credentials and are highly regarded in conservative legal circles. Indeed, six of the twelve have already earned their way onto Trump’s list of Supreme Court candidates. The twelve include three women [and] two Asian Americans . . . .

Three factors account for this remarkable success on federal appellate judges. First, the conservative legal movement has grown significantly over the past two decades. . . . Second, thank Harry Reid. In November 2013, the Democratic majority leader pushed to repeal the filibuster for lower-court (and executive-branch) nominees. His success meant that a steadfast minority of 41 or more senators could no longer block a judicial nomination. . . . Third, federal appellate nominations mattered deeply to the key players. Kudos to President Trump and White House counsel Don McGahn for selecting excellent nominees, and to Mitch McConnell and Senate Judiciary Committee chairman Chuck Grassley for placing a high priority on moving them through to confirmation.

But Mr. Whelan notes that, despite last year's successes, much work remains to be done, partly due to the huge number of vacancies that need to be filled and partly due to the obstruction of Senate Democrats at every step of the process:

Two big obstacles — one at the front end of the nomination process, the other at the back end — have caused these impasses and threaten to continue to stymie judicial confirmations. The front-end obstacle is the Senate Judiciary Committee’s so-called blue-slip privilege, which accords individual senators the opportunity to approve or disapprove of judicial nominees in their home states (and which derives its name from the piece of paper that senators once used to register their views). . . . Given the stark divide on judicial philosophy between the White House and Senate Democrats, not to mention the animosity between them, it’s no surprise that the consultations that the White House has undertaken on judicial nominations have yielded little fruit. . . . [The confirmation] line may prove long and slow because of the back-end obstacle that nominees face: the Senate’s arcane and cumbersome “cloture” process.

The entire article is well worth reading for a summary of the current status of federal judicial nominations.  As he notes, White House Counsel Don McGahn, Senate Majority Leader Mitch McConnell, and Senate Judiciary Chairman Chuck Grassley have been instrumental to the success of President Trump's first year, and Americans owe them a debt of gratitude.

Part 1: Top Blog Posts of 2017 - Gorsuch and Fake Election Law News

Today and next Friday, the RNLA will highlight the top blog posts of the Republican Lawyer Blog for 2017.  This is part 1: Top RepLawyer Posts for 2017, numbers 10-6.  Today’s post will focus on Justice Neil Gorsuch and election law.  No reasonable lawyers’ group can look back on 2017 and not celebrate the confirmation of Justice Gorsuch.  On elections, it is unfortunate that Democrats continue to use the race card and fight against those trying to make elections more open, fair, and honest for all.  

10.  April 10: "Congratulations to Justice Gorsuch"  Excerpt:  
RNLA Co-Chair John Ryder agreed: “Judge Gorsuch is a worthy successor to Justice Scalia. I am delighted that President Trump has delivered on his promise to the American people to nominate someone who fits the mold of Justice Scalia. I am equally pleased that the Senate saw fit to honor the will of the people by confirming Judge Gorsuch."

9.  January 13: "EAC Commissioner Questions Extension of DHS' Power to Elections"  Excerpt:  
Election Assistance Commissioner Christy McCormick stated: “This action politicizes elections. There is a reason that the Founding Fathers gave the authority of conducting elections to the States. There is a reason that when Congress set up the U.S. Election Assistance Commission (EAC), they made it a bipartisan, independent agency and gave it no regulatory authority.” 

8.  March 27: "ICYMI, Study Showing Voter ID Suppressed Minority Turnout Was ‘Fake News’"  Excerpt:
“Many federal courts have been asked to do the same: Find a causal link between voter ID and intentional decreases in minority turnout,” [Logan Churchwell, spokesman for the Public Interest Legal Foundation] said. “All eventually failed. Despite this, too many in the media are willing to report an initial study as gospel before peer reviewers can weigh in. It should have struck many news editors weeks ago that it took until 2017 to provide proof to a belief that could have been confirmed a decade ago, if true.”

7.  January 5: "Sessions' ‘Racist’ Vote Fraud Prosecution Was to Protect Black Voters' Voting Rights"  Excerpt:
“As Craig Donsanto says, this was a prosecution intended to preserve and protect the right to vote, something to which he dedicated his entire professional career. Anyone who claims this was a racist prosecution by Jeff Sessions is, according to Donsanto, “a liar and a political opportunist of the worst kind.”

6.  April 18: "Justice Gorsuch Asks at First Oral Argument, Why Not Follow ‘Plain Text of the Statute'?"   Excerpt:  
Gorsuch focused his first line of questioning on the wording of the statute, asking the employee’s attorney, Christopher Landau, several questions about where in the law it says district courts have jurisdiction to hear civil service claims.   “Wouldn't it be a lot easier if we just followed the plain text of the statute?” asked Gorsuch.

Look for part 2 next Friday.  Happy Holidays!

President Trump Had Considerable Success Restoring The Rule of Law In 2017

RNLA Co-Chair Joanne Young wrote today in The Daily Caller about how successful President Trump has been restoring the rule of law in 2017.  It began with Attorney General Jeff Sessions and the Department of Justice:

At every turn, Sessions has had to fight against entrenched, liberal career employees and Obama holdovers. But Sessions has remained dedicated. He has increased focus on vigorous and equal enforcement of the laws to reduce violent crime, ended third-party settlement practices that directed taxpayer dollars to liberal outside groups, and defended the rule of law in litigation, such as supporting voter ID laws, free speech, and religious liberty. The process of restoring the rule of law to the Department of Justice will take years, but President Trump and Attorney General Sessions have had an effective first year.

And continued with Supreme Court Justice Neil Gorsuch and other exemplary new federal judges:

At just 50 years old, Justice Gorsuch will serve on the nation’s highest court for many years to come. In his 10 years on the Tenth Circuit, he had demonstrated a commitment to adhering to the text of the Constitution, statutes, and regulations, even when it led to unfortunate results on the facts. He had shown his dedication to the principle that it is for the legislature to decide policy and enact it in law and for judges to apply that law, without inserting their own policy preferences. While his commitment to the rule of law and textualism has earned him the scorn of liberals, it protects the right of the American people to be ruled by the law written by their elected representatives, not by the whim of unelected judges.

President Trump has also started rolling back overreaching regulations and unlawful policies across the Executive Branch:

On taking office, President Trump immediately began rolling back the regulatory overreach that was the hallmark of the Obama years. On January 30, he directed that when an agency promulgated a new regulation in 2017, it had to identify two regulations to repeal. He has periodically directed agencies to review the permissibility of particular rules or interpretations that have impermissibly expanded the scope of certain laws and regulations, such as when he directed the Environmental Protection Agency’s Administrator to review the “Waters of the United States” rule on February 28. 

As the agency personnel nominated by President Trump have taken office, they have worked to review and undo the harmful and expansive interpretations of the Obama years in their agencies. For example, in October, EPA Administrator Scott Pruitt ended the “sue and settle” practices whereby radically liberal environmental organizations controlled how the EPA interpreted its own rules through litigation, often being paid with taxpayer money for their efforts. . . . Or consider Federal Communications Commission Chairman Ajit Pai, [whose] proposal to undo the FCC’s own regulatory overreach of the Obama years, “net neutrality,” was approved last Thursday, despite personal, racially tainted attacks against Pai and his family by outraged liberals. . . . Net neutrality was imposed through an FCC power grab whereby, after 20 years of bipartisan agreement over the Internet, the FCC unilaterally reinterpreted its own governing laws without congressional authorization, despite the previous FCC Chairman admitting that he did not know how the new rule would be interpreted.

Ms. Young concludes by pointing to the very real world consequence of decreased and clearer regulations: a booming economy.  Likewise, judges and a Department of Justice that respect the rule of law protect the rights of all people, ensuring a brighter future for all Americans.