Justice Samuel Alito

  • November 10, 2015
    Guest Post

    by Leslie C. Griffin, Boyd Professor of Law, UNLV Boyd School of Law

    Now that the Supreme Court has granted cert. in Zubik v. Burwell on seven related religious nonprofits’ cases, we will have an opportunity to learn if Hobby Lobby was a “decision of startling breadth,” as Justice Ginsburg predicted in her dissent. In Zubik, the religious nonprofits allege that the government’s accommodation of the contraceptive mandate of the Affordable Care Act (ACA) violates the Religious Freedom Restoration Act (RFRA). An important part of the case turns on what the Court views as a “substantial burden” on the exercise of religion.

    Under RFRA, a plaintiff must demonstrate as a threshold matter that the government substantially burdened his exercise of religion. Only then does the government have to meet the most difficult test in constitutional law, namely that its action constitutes the least restrictive means of serving a compelling government interest. If the courts make it easy for plaintiffs to prove a substantial burden, each and every federal law can be constantly put to this strict standard.

    The appeals courts in the nonprofit cases ruled that plaintiffs’ religious exercise was not substantially burdened by the accommodation. An Eighth Circuit opinion, however, suggests that those courts misread Justice Alito’s analysis in Hobby Lobby. Zubik will test just how deferential the Court intends to be toward religious plaintiffs who allege a substantial burden on their religion.

    Hobby Lobby’s Substantial Burden

    The contraceptive mandate of the ACA requires employers to include preventive health care services in their insurance coverage. Hobby Lobby involved a successful challenge to the mandate by religious for-profit employers who believe as a matter of faith that four covered contraceptives cause abortion. At the beginning of his opinion upholding the for-profits’ challenge, Justice Alito observed that if the employers did not provide contraceptive coverage, they would be taxed $100 per day for each affected employee, which could amount to $1.3 million per day and $475 million per year for employer Hobby Lobby, and $90,000 per day and $33 million per year for Conestoga Wood. That amount of money, Justice Alito concluded, is “surely substantial.”

    Responding to the argument that the employers need not provide insurance in the first place, Alito then identified an alternative substantial burden. If at least one of their employees qualified for a government subsidy on the health care exchanges, the companies would be fined $2,000 per employee per year, totaling $26 million for Hobby Lobby and $1.3 million for Conestoga. Still substantial, in Justice Alito’s eyes.

  • May 1, 2015
    Guest Post

    by Ann C. Hodges, Professor of Law, University of Richmond School of Law

    In a blog post following the Supreme Court’s decision last term in Harris v. Quinn, I predicted that the constitutionality of union fair share fees would soon be back at the Court. It took little prescience to make such a prediction and indeed, the plaintiffs in Friederichs v. California Teachers’ Association worked mightily to get the case on the Court’s docket as quickly as possible. The Court will decide whether to grant cert in the near future.

    Although this issue will no doubt return repeatedly to the Court, it should decline to hear the case. The 1977 decision of the Court in Abood v. Detroit Board of Education correctly concluded that fair share fees are constitutional, and the decision should not be disturbed. Abood allows the union to charge for its mandated representational duties, but not for political expenditures. In this context, the objectors’ first amendment interests are reduced and the interests of the government employer that has entered into an agreement with the union enhanced. Justice Alito suggested in Harris, however, that all union activity in the government sector implicates the highest first amendment interests. This is at odds with the Court’s cases on the first amendment interests of public employees following Abood.

    In recent years, the Court has held that the government has stronger interests in restraining speech when it acts as an employer. Accordingly, when employees speak pursuant to their job duties, their speech is unprotected. Additionally, when an employee’s speech is about an internal workplace grievance, it is similarly unprotected by the first amendment. It is precisely these grievances that the union is obliged to handle for all employees regardless of membership.  If speaking about the grievance is unprotected, why is compelling the unwilling employee to pay for this otherwise unprotected speech an interference with first amendment rights?  Further, Justice Alito’s Harris opinion suggests that when one employee asks for a raise, the speech is unprotected but when the union asks for a raise on behalf of all employees, it is high order political speech which the employee cannot be compelled to support.  As Justice Kagan pointed out in the Harris dissent, the fact that it takes more money to pay multiple employees does not transform the character of the speech when the substance, asking for a raise, is the same.

    There are many other reasons for the Court to deny cert. Abood has been settled law for almost 40 years, Justice Alito’s efforts notwithstanding. As Justice Kagan ably pointed out in Harris, principles of stare decisis, including the reliance interests of thousands of employers and unions and millions of employees, counsel restraint. Moreover, as I have argued in earlier posts, fair share agreements are an essential pillar of the system of labor relations that has served our country well for 80 years.  And finally, as pointed out in the opposition to cert, the record in this case has not been developed, as the plaintiffs rushed to accept Justice Alito’s invitation for an opportunity to overrule Abood.

  • April 21, 2015

    by Caroline Cox

    Jess Bravin reports in The Wall Street Journal that the Supreme Court has revived a challenge to North Carolina’s election map based on the argument that it “illegally concentrates black voters in a handful of districts.”

    Nina Totenberg profiles for NPR the “accidental activists” of the Supreme Court’s same-sex marriage arguments.

    In a new podcast at Slate, Dahlia Lithwick discusses the balance of political and psychological  motivations on the Supreme Court with Adam Liptak and Eric Segall.

    Leslie Griffin criticizes at Hamilton and Griffin on Rights the recent decision by Justice Samuel Alito to stay a lower court decision that refused to grant an exemption to Catholic officials from filling out a form saying they would not provide employees with contraceptive coverage.

    Matt Ford of The Atlantic explains how the death penalty is becoming less common and public support for the practice is on the decline.

  • January 8, 2015

    by Caroline Cox

    Katy Reckdahl reports in The Nation on how the collateral damage of mass incarceration often includes the children left behind.

     At The New Republic, Brian Beutler argues that conservative efforts to introduce Obamacare alternatives are aimed at persuading the Supreme Court more than helping voters.

    Jennifer Ludden reports for NPR on a recent hearing on whether a Texas abortion law places an undue burden on women seeking abortions.

    Linda Greenhouse profiles in The New York Times Justice Samuel Alito Jr. and “the increasingly distinctive role he is carving out form himself” at the Supreme Court.

    In The Atlantic, Ryan Park writes about what Justice Ruth Bader Ginsburg taught him about being a stay-at-home dad.

  • November 19, 2014

    by Caroline Cox

    Simon Lazarus argues at The New Republic that supporters of the Affordable Care Act are inadvertently recycling conservative arguments when defending the healthcare law against the latest legal challenge.

    At The Economist’s Democracy in America blog, Steve Mazie considers empathy on the Supreme Court. He argues that their “small and privileged” circles limit their perspectives.

    Stephanie Mencimer discusses the Alabama redistricting cases for Mother Jones, arguing that the state that helped gut the Voting Rights Act is now using it to justify racial gerrymandering.

    Oliver Roeder of FiveThirtyEight explains why it is so difficult to predict Supreme Court rulings.

    At CNN, Ed O’Keefe reports on Justice Samuel Alito’s recent remarks about the press and criticisms of the Court’s lack of diversity.