Bold Justice: February 26, 2018

Bold Justice: Labor Unions to start, First Amendment to finish

It’s a busy week for the Supreme Court as the justices prepare to hear five cases. In the headline case of the week, the Supreme Court may finally resolve the constitutionality of labor union agency fees, an issue the court has returned to several times. Then, later in the week, the court will consider law enforcement’s ability to reach email data stored overseas and two very different First Amendment cases. Ready to go?

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On Monday, the court will hear Janus v. AFSCME, a public unions case that could finally resolve a union fees issue that the court has struggled to address several times in the last few years. The issue in Janus is whether the Supreme Court should overrule its 1977 decision in Abood v. Detroit Board of Education that public sector employees can be required to pay agency fees. The plaintiff in this case is Mark Janus, a public sector employee in Illinois. Janus challenged an Illinois statute requiring public sector employees to pay agency fees.

Generally, members of a labor union pay fees to the union. Those fees support the union's activities. Unions' activities can include collective bargaining, contract administration, and grievance adjustment, as well as political activities like lobbying. Some public sector employees do not want to join a union, and some are opposed to unions' political activities. In recognition of those employees' First Amendment rights, they cannot be required to financially support a union's political activities. However, in the 1977 case Abood v. Detroit Education Association, the United States Supreme Court ruled that it was not a violation of employees' First Amendment rights to require them to pay fees to support the union activities from which they benefited, like collective bargaining. Fees from non-member employees who do not want to support a union's political activities are called agency fees or fair share fees. Agency fees are a proportionate share of the costs of collective bargaining and contract administration.

The rule in Abood has been challenged several times in the past few years. Most recently, public school teachers in California challenged agency fees in Friedrichs v. California Teachers Association. That 2016 case involved a California statute similar to the Illinois statute Janus challenged. However, the Supreme Court was not able to issue a determinative ruling in Friedrichs. Friedrichs was decided by the court after the death of former Justice Antonin Scalia but before the appointment of Justice Neil Gorsuch. With only eight justices, the court split four-four in Friedrichs. A four-four split in the U.S. Supreme Court leaves in place the lower court's ruling but does not create any binding precedent. With a full roster of nine justices, this case offers the Supreme Court the opportunity to expressly uphold or overrule Abood.

On Monday, the court will also hear arguments in Ohio v. American Express, a case about antitrust suits under § 1 of the Sherman Act. In order to determine whether a defendant has violated § 1 in cases like this one, courts use a test called the rule of reason. Under the first step of the test, “a plaintiff bears the initial burden of demonstrating that a defendant’s challenged behavior had an actual adverse effect on competition as a whole in the relevant market.” American Express (Amex) has historically included nondiscriminatory provisions (NDPs) in its agreements with merchants who accept Amex from their customers. Amex's NDPs require, among other things, that merchants cannot state a preference for any card over an Amex card. The United States and a number of U.S. states filed suit against Amex, Visa, and Mastercard, alleging violations of the Sherman Act. The other defendants resolved their cases separately, and Amex proceeded to trial.

The United States Court of Appeals for the 2nd Circuit ruled that the U.S. and the states had failed to carry their burden under the first step of the test, meaning that they could not hold Amex liable. It ruled, “To prove that the anti-steering provisions were anticompetitive...the Government bore the burden to show not just that the provisions had anticompetitive pricing effects on the merchant side, but also that those anticompetitive effects outweighed any benefits on the cardholder side." The court concluded, "We find that without evidence of the NDPs’ net effect on both merchants and cardholders, the District Court could not have properly concluded that the NDPs unreasonably restrain trade in violation of § 1 [of the Sherman Act]." The plaintiffs appealed to the Supreme Court.

On Tuesday, the court will hear United States v. Microsoft, a highly anticipated case about law enforcement’s access to data held by email providers outside the U.S.The United States obtained a warrant for the email contents of one of Microsoft’s email customers. When served with the warrant, Microsoft sought to quash or void the warrant on the grounds that the content the warrant sought was stored overseas. Microsoft argued that the warrant could not apply to reach data outside U.S. borders. A federal district court disagreed, ordering Microsoft to comply with the warrant and sanctioning Microsoft for its initial refusal to comply. On appeal, the United States Court of Appeals for the 2nd Circuit reversed, ruling that the statute under which the warrant was authorized was not designed to be extraterritorial and therefore did not apply outside of the United States.

The court will also hear arguments on Tuesday in Lozman v. City of Riviera Beach, a First Amendment case about the scope of claims for retaliatory arrest. Fane Lozman was arrested at a Riviera Beach City Council meeting after refusing to stop speaking when a councilperson instructed him to stop. The charges against him were dismissed. Lozman filed suit against the city, claiming that the arrest was made not because he was suspected of engaging in unlawful conduct but in retaliation for Lozman's criticisms of the city's plan to use eminent domain to revitalize a portion of the city's waterfront. At trial in Lozman’s suit, the district court judge instructed the jury that they could only find in Lozman's favor if they concluded that there was no probable cause in support of Lozman's arrest. The jury found for the city. On appeal, the United States Court of Appeals for the 11th Circuit ruled, "The jury’s determination that the arrest was supported by probable cause defeats Lozman’s First Amendment retaliatory arrest claim as a matter of law."

A retaliatory arrest claim is one where a plaintiff alleges that they were arrested not because they committed a crime but in retaliation for exercising their free speech rights--most often, allegedly in retaliation for the plaintiff publicly criticizing a government official or governmental decision. In this case, the stated reason for Lozman's arrest was the suspicion that he was disturbing the peace. Lozman's claim is that his arrest was retaliation for his criticisms of the council's plans. The issue before the Supreme Court is whether the fact that there was probable cause for an arrest bars Lozman's claim for retaliatory arrest.

Finally, on Wednesday, the court will hear arguments in Minnesota Voters Alliance v. Mansky. The Minnesota Voters Alliance and several other groups and individuals, including the Minnesota Northstar Tea Party Patriots and the Election Integrity Watch, filed suit against the Minnesota Secretary of State and other elections officials in Minnesota. The plaintiffs challenged Minnesota Statute § 211B.11, which "prohibits wearing a 'political badge, political button, or other political insignia . . . at or about the polling place on primary or election day.” Under the statute, a person who wore political apparel to a polling place was still allowed to vote. However, if the person refused to cover or remove the item, they could face a misdemeanor charge for violating the statute.

The plaintiffs argued that the statute violated their rights under the First Amendment to the United States Constitution because it prohibited them from wearing apparel with Tea Party logos to their polling places. The United States Court of Appeals for the 8th Circuit ruled against the plaintiffs. Citing earlier Supreme Court cases, the court ruled, “Restrictions on speech in a nonpublic forum are constitutionally valid if viewpoint neutral and reasonable in light of the purpose which the forum at issue serves.”

As of publication today, the Supreme Court has agreed to hear arguments in 71 cases so far this term; of those 71, the court has heard arguments in 43 cases. The court will continue to hear arguments in cases this term through April 2018. Although it may continue to consider new appeals, its current number of accepted cases--71--is the same as the total number of cases it agreed to hear last term. With arguments scheduled through March, the court has limited number of argument days left to fill. Wondering where the cases are coming from this term? Check out this chart showing the number of cases from each lower court:

SCOTUS trivia

Originally, the Supreme Court held two sessions per year, in February and August. The Judiciary Act of 1802 eliminated the separate sessions and instead dictated that there would be one session which started on the first Monday in February. Today the court’s single term begins in October. Your question: In what year did the Supreme Court first begin its term in October?

a) 1908

b) 1873

c) 1949

d) 1824

Choose an answer to find out!

Federal court action

Confirmations

The U.S. Senate did not confirm any additional nominees since our last issue.

Nominations

President Trump did not announce any additional nominees since our last issue.

Vacancies

As of publication, there were 146 vacancies in the federal judiciary out of 870 Article III life-term judicial positions. Of those 146 vacancies, 88 have had no nominee put forth as yet during President Trump’s administration. According to the Administrative Office of U.S. Courts and other outlets, an additional 30 judges have announced their intention to leave active judicial status during Trump’s first term. There are 62 pending nominations to life-term, Article III judicial positions. Check out the chart below to see vacancies of four years or more:

Committee action

The Senate Judiciary Committee did not meet last week.
Love judicial nomination, confirmation, and vacancies information? We figured. Our monthly Federal Vacancy Count, which is published on the last Wednesday of every month, monitors all of the faces, places, and spaces moving in, moving out, and moving on in the federal judiciary.

Need a daily fix? Our Federal Vacancy Warning System’s got you covered with continuing updates on the status of all federal judicial nominees.

Or, if you prefer, we maintain a list of individuals nominated by President Trump.

A judge you oughta know

Every week, we at Ballotpedia want to highlight a federal judge or judicial nominee. We’re in our review of President Donald Trump’s list of 25 individuals from which he indicated he would choose nominees to fill Supreme Court vacancies. This week, let’s get to know Federico Moreno, a judge on the United States District Court for the Southern District of Florida and a judge you oughta know. Moreno joined the court in 1990 after being nominated by President George H.W. Bush. A native of Caracas, Venezuela, Moreno graduated from the University of Notre Dame with his bachelor's degree in 1974 and from the University of Miami School of Law with his J.D. in 1978.

Looking ahead

Here’s what we’re looking ahead to this week:

We expect the U.S. Supreme Court to hear arguments in five cases.
We expect the U.S. Supreme Court to issue orders and possibly opinions this week.

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Bold Justice: February 26, 2018

Contents

Bold Justice: Labor Unions to start, First Amendment to finish

We #SCOTUS, so you don’t have to

SCOTUS trivia

Federal court action

Confirmations

Nominations

Vacancies

Committee action

A judge you oughta know

Looking ahead

Why subscribe to Bold Justice?

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