by Kent Greenfield, Professor of Law and Law Fund Research Scholar, Boston College Law School
Most cases on the Supreme Court’s docket in any given year are not the likes of Windsor, Shelby County, or Fisher. Those get the headlines, of course, and rightly so. But most of of the Court’s caseload is dedicated to answering various arcane questions in eddies of the U.S. Code. By virtue of its position at the top of the judicial hierarchy, one of the Court’s primary jobs — still — is to be the final arbiter of these kinds of questions when the lower courts disagree. Only the most fastidious Court watchers pay much attention. (Back when I was clerking on the Court almost twenty years ago, I worked on a case that decided the statute of limitations for the Worker Adjustment and Retraining Notification Act. I’m shocked — shocked! — you don’t remember it.)
So looking over the January argument list, no one would blame you if, at first glance, you assumed Harris v. Quinn falls into this group. The question presented appears to be exceedingly narrow and specific — whether home health care workers in Illinois, paid for by Medicaid, are state employees. If they are, then a union representing state employees will be under a duty to bargain collectively on their behalf, and the workers will be required to pay their “fair share” of the costs of such union representation. The case arose when some health care workers covered by the collective bargaining agreement challenged the mandatory union fees as a violation of the First Amendment.
The Seventh Circuit decided the case in a terse, unanimous opinion. For nearly forty years, since Abood v. Detroit Board of Education, the law has been settled that public employees “may be compelled to support legitimate, non-ideological, union activities germane to collective-bargaining representation.” It is the quid pro quo of labor law: the unions are under a duty to represent all employees in the bargaining unit; in return, the employees are prohibited from free-riding.
Calling balls and strikes, is that what marriage equality will come down to? Arguably one of the more conservative Supreme Court’s in modern history has chosen to wade into a major equality battle, and its Chief Justice once said that judging is akin in some ways to being a baseball umpire.
Of course since that statement during his confirmation hearings in 2005, the Roberts Court has dealt with matters far weightier than those found on a baseball field. The Court has also shown that judging is a good bit more complicated. Have you read all the opinions, concurring opinions and dissents in the Court’s actions this year on the landmark health care reform law?
Janson Wu, a staff attorney for Gay & Lesbian Advocates & Defenders (GLAD), noted some concern, telling ACSBlog, “The fact that the Court decided to hear both a challenge to DOMA and Proposition 8 presents obvious opportunities and risks. All of us fighting for LGBT rights obviously hope for the best case scenario and realize that there is so much work to make that happen. Now is not the time to wait and see how the Court decides. Instead, it is more important than ever for use to continue to achieve victories at both the state and federal level in the next few months, before the Supreme Court decides these cases.”
While those pushing for marriage equality are rooting for the demise of DOMA, a blatantly discriminatory law that has treated same-sex couples as second class citizens denying them scores of federal benefits that their straight counterparts enjoy or take for granted, others are concerned about a potentially disastrous ruling in the Proposition 8 case.
By Kent Greenfield. Greenfield is a Professor of Law, and Law Fund Research Scholar at Boston College Law School.
Before the end of the latest SCOTUS term, flush with the excitement of the right’s anticipated victory in the ACA case, a small bank in Texas and a few additional plaintiffs sued to contest the constitutionality of the Consumer Financial Protection Bureau (CFPB) and the Financial Stability Oversight Council (FSOB), two new agencies created by the Dodd-Frank legislation in 2010.
Few would have noticed except that the main lawyer for the plaintiffs is C. Boyden Gray, the White House counsel for George H.W. Bush. The Wall Street Journal printed an op-ed the day they filed suit, and several other right-leaning media outlets gave it mention. One commenter on the WSJ page said the lawsuit is more important for the future of the country than the presidential election.
If the lawsuit were to be victorious, it would disembowel the most important innovations of the Dodd-Frank legislation, which, even with its numerous flaws, was an important legislative victory during Obama’s first term. [image of president signing legislation in summer 2010]
Should progressives worry?
I read through the complaint, and I don’t think we should.
If you separate out all the sturm und drang, the main focus of the constitutional claim is that Dodd-Frank created independent agencies that have too much discretion to regulate, especially using post-hoc adjudication. While the arguments against such independence, discretion, and post-hoc adjudication could occupy several hours of discussion in an introductory constitutional law class, they are hardly questions of first impression in the courts. On the contrary, the questions of whether administrative agencies (1) may be insulated from political control by the president, (2) may define operative regulatory terms, and (3) use adjudication to make law have been answered in the affirmative for decades.
So this lawsuit is not like the suits brought against the ACA that arguably raised new arguments about the scope of the commerce clause (action versus inaction, broccoli, and all that). This is a lawsuit wanting to re-litigate decades of settled law.
By Kent Greenfield, a law professor and Law Fund Research Scholar at Boston College Law School.
Americans love to be able to choose. The typical grocery store has more than 45,000 different items; the average American family has access to about 120 television channels. Glenn Beck opines, “for us to be able to choose, that’s a blessing.”
An analogue to the fixation on choice is the focus on personal responsibility. Because people make choices, they should be able to take personal responsibility for those they make. This sounds like something all of us could agree on, even in this especially tendentious moment in political history.
Choice is limited in all kinds of ways. Humans are limited by brain science, habit, authority, culture, and the so-called “free” market, which restricts as much as it empowers. We are easily overwhelmed by choice. Consider the grocery store and television statistics mentioned above -- studies show that people are happier when they choose among fewer, not more, items; television viewers may want lots of channels but actually watch only a handful.
Acknowledging the limits on choice is the first step toward recognizing the insidious nature of “personal responsibility” rhetoric. More and more, those on the right equate “personal responsibility” with choice. It is not about maturity or accountability but simply another way of saying that individuals get to make choices for themselves; they are masters of their fate.
This brand of personal responsibility is used to oppose health care reform, support tort reform, and explain away problems of homelessness or delays in hurricane response. It uses a respect for individual choice to make the political point that government should be small, uninvolved, and deferential to individual decisions.
By Kent Greenfield, Professor of Law and Law Fund Research Scholar, Boston College and is presently writing a book about choice and consent in law, politics and economics. Greenfield is a former Clerk to Justice David Souter (1994-95).
Ever since President Obama announced that he would seek out an empathetic replacement for David Souter on the Supreme Court, the nation has engaged in a revealing debate about empathy. No one denies that empathy is an important quality for our daily lives, and something we should engender in our kids. But there is an honest disagreement about whether empathy is an appropriate qualification for a judge.
Liberals like empathy, because compassion brings mercy, and mercy is seen as an important part of good judging. Conservatives denounce empathy, saying compassion breeds judicial activism. Law professor Steven Calabresi has warned that asking judges to be empathetic is like removing the blindfold from the iconic Lady Justice, allowing the judge to decide in favor of whichever perspective elicited more feelings of compassion.
If empathy is simply a matter of being open to feeling a certain amount of sympathy for one party or the other, the conservatives may be right that it creates risks for a judicial institution. Judges might be too quick to base judgments on unacknowledged bias or prejudice.
There is a better definition of empathy for the judicial context, however, that focuses not on how judges feel but how they think. This kind of empathy is not only beneficial for the institution, but crucial. And David Souter has embodied this kind of empathy in his tenure on the court. Let me explain.