Justice Samuel Alito

  • 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. 

  • October 27, 2014

    by Caroline Cox

    On the Media discusses the recent ACS-sponsored “Skewed Justice” report with Joanna Shepherd, co-author of the study and Professor of Law at Emory Law School.

    In The Boston Globe, Martha Minow writes about the large number of Americans who cannot afford legal counsel and the risk that this poses to the principle of “equal justice under law.”

    Adam Liptak reports in The New York Times on the recent Yale Law School visit of Justice Clarence Thomas, Justice Samuel Alito Jr., and Justice Sonia Sotomayor where the justices discussed the Court’s wariness of new technology, diversity, and salsa dancing.

    In USA Today, Richard Wolf previews Zivotofsky v. Kerry, a case that considers which branch of government has the authority to recognize foreign countries.

    Dahlia Lithwick of Slate questions the Supreme Court’s eagerness to protect First Amendment rights and ignore the rights to vote and obtain an abortion.

    The Editorial Board of the Los Angeles Times laments the new era of voter suppression.