Supreme Court

  • April 14, 2015
    BookTalk
    The Workplace Constitution
    from the New Deal to the New Right
    By: 
    Sophia Z. Lee

    by Sophia Z. Lee, Professor of Law & History, University of Pennsylvania Law School

    “Right to work” is dominating the news, making headway in union strongholds and finding sympathy on the Supreme Court.  Yet the concept of a legal “right to work” harkens back to the early Twentieth Century when this and other substantive due process doctrines were used to strike down Progressive labor laws.  The New Deal Court supposedly laid to rest this “Lochner era” (thus named for an emblematic 1905 decision holding that a New York maximum-hours law violated workers’ and employers’ freedom of contract).  So how have right-to-work proponents managed to rally successfully behind such an anachronistic term?

    The Workplace Constitution from the New Deal to the New Right provides the first legal history of the right-to-work campaign.  As it demonstrates – right-to-work strategists’ Lochner-era moniker notwithstanding – these savvy and forward-looking activists quickly replaced their substantive due process claims with ones based on the First Amendment.  In the process, they forged a modern conservative civil rights campaign that grew up alongside its liberal counterparts.

    The conservative activists who fought the union power unleashed by the New Deal had sturdy Lochner-era roots.  Even before the New Deal, employers had moderated their open-shop activism, insisting that they were anti-closed shops, not anti-union.  When activists first gathered under the right-to-work banner in the early 1940s, their argument that no one should have to join or support a union to keep a job was in keeping with that Lochner-era position.  In 1944, Hollywood mogul Cecil B. DeMille brought the first right-to-work lawsuit over a one dollar assessment levied by his union.  DeMille’s suit likewise relied on Lochner-era substantive due process claims and precedent.

    But right-to-work activists quickly updated their legal claims to fit the emerging civil rights and civil liberties regime.  Even DeMille’s suit reflected this change: On appeal, DeMille’s lawyers added First Amendment forced speech claims based on the 1943 Supreme Court decision West Virginia Board of Education v. Barnette, which found that public schools could not compel students to salute the flag.  

    In the 1950s, right-to-work advocates pursued a coordinated litigation campaign akin to the NAACP’s challenge to public school segregation.  When their cases reached the Supreme Court in the 1950s and ‘60s, First Amendment forced speech and association claims, along with post-New Deal precedents, predominated.  Over succeeding decades, right-to-work advocates eliminated substantive due process claims from even the margins of their lawsuits.  The constitutionality of union security agreements comes before the Supreme Court today strictly as a First Amendment issue.

  • April 7, 2015
    Guest Post

    by Mark S. Kende, James Madison Chair Professor of Law and Director of the Drake University Constitutional Law Center, and Bryan Ingram, Notes Editor of the Drake Law Review

    In 2009, the Texas Department of Motor Vehicles Board (DMVB) rejected a controversial license plate design proposed by the Sons of Confederate Veterans (SCV), a Texas non-profit group.  The plate features a confederate battle flag surrounded by the words “Sons of Confederate Veterans 1896,” a faint confederate flag design in the background, an outline of the state in the upper-right-hand corner, the words “Texas” at the top of the plate, and the words “Sons of Confederate Veterans” at the bottom. 

    The DMVB’s action triggered a First Amendment battle between the state and the SCV, which is presently before the Supreme Court.  After the recent oral arguments, many believe the issue will hinge on whether the design constitutes government or private speech.  The question of whether such a plate contains racist hate speech is also relevant.  Most foreign nations ban racist hate speech.  The U.S. Supreme Court, however, has said racist hate speech is protected.  Some have called this American free speech exceptionalism, but the SCV says they are just committed to preserving the history and legacy of confederate veterans.

  • April 3, 2015
    Guest Post

    by Nicole Huberfeld, H. Wendell Cherry Professor of Law, University of Kentucky

    The Supreme Court recently decided Armstrong v. Exceptional Child Center, a low-profile case that could strike at the heart of the Medicaid program, a federal program that provides funding to states to facilitate mainstream medical care for low-income Americans. The Medicaid Act contains requirements that states must obey to receive federal funding, one of which is called the equal access provision, or "30(A)".  This provision requires states to ensure that “payments . . . are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area.” Historically, Medicaid payment rates are lower than private insurance or Medicare rates, despite the 30(A) requirement for sufficient payment.

    Additionally, the Medicaid Act does not provide explicit remedies for state failures in the program, other than authorizing the Department of Health and Human Services (HHS) to withdraw federal funding.  Thus, over the years, health care providers and patients have brought private enforcement actions under the civil rights statute known as Section 1983 or under the Supremacy Clause of the U.S. Constitution to enforce statutory rights under the Medicaid Act.  Section 1983 actions have been limited by the Supreme Court.  Consequently, health care providers and Medicaid beneficiaries turned to the Supremacy Clause, seeking injunctive relief against states under the theory that states violate federal law when they fail to pay sufficient reimbursement rates to ensure equal access.  Two years ago, the Court nearly eliminated Supremacy Clause actions in Douglas v. Independent Living Center, but deference to agency decision making ultimately stayed the Court’s hand.

    Armstrong has done what the dissent in Douglas would have.  Justice Scalia’s majority opinion pointedly began by noting that states agree to spend federal funds "in accordance with congressionally imposed conditions."  The majority asserted that the Supremacy Clause provides a "rule of construction" but does not "create a cause of action" unless Congress "permits the enforcement of its laws by private actors."  The Court then determined that Congress intentionally excluded private enforcement from the Medicaid Act, and therefore providers cannot seek injunctive relief under the Supremacy Clause.

    This conclusion is incorrect.  Congress did not "foreclose" or "exclude" private enforcement from the Medicaid Act, either in 1965 when Medicaid was enacted, or when 30(A) amended the Act.  In fact, Congress debated preventing providers and beneficiaries from seeking relief in federal court but never added such language to the Medicaid Act.  Nevertheless, the majority concluded that the Secretary of HHS is solely responsible for enforcing 30(A) pursuant to her authority under 42 U.S.C. §1396c to withhold Medicaid funds from non-compliant states.  The Secretary is reluctant to withhold funds because it could harm beneficiaries, but the majority did not engage this quandary.  Instead, the majority called 30(A) judicially unmanageable – even though lower federal courts have guided states under 30(A) for years – and held that HHS must directly engage the states without federal courts’ interference.

    The majority circled back to Medicaid's status as a spending program in Part IV of its opinion, which may resurrect a dormant theory of spending programs as being like contracts and unlike other federal laws.  The Court often analogizes federal conditional spending programs to contracts under the Pennhurst decision, but in some cases (e.g. Barnes v. Gorman), Justices have suggested that the "third party beneficiaries" of federal spending programs have no enforceable rights.  The majority opinion reiterated this view of conditional spending statutes, noting that "contracts between two governments" cannot be enforced by beneficiaries of those contracts.  Not even the historical vision of strict dual sovereignty in federalism would have claimed that the federal government and the states are co-equal sovereigns, yet this dicta seems to embrace a vision of federalism that offers much more power to the states.  The majority opened the courthouse doors to further eroding of conditional spending statutes in the context of the Medicaid Act and perhaps beyond.

  • April 1, 2015
    Guest Post

    by Leslie A. Shoebotham, Victor H. Schiro Distinguished Professor of Law, Loyola University New Orleans

    This week, the U.S. Supreme Court in a per curiam opinion held that monitoring a recidivist sex offender via an ankle bracelet device was a “search” for Fourth Amendment purposes.  In Grady v. North Carolina, the Court concluded that United States v. Jones controlled the case – i.e., attachment of an ankle bracelet and monitoring of the device to determine Grady’s location was a “search,” just as the government’s attachment and monitoring of a Global Positioning System (GPS) device onto Jones’s vehicle was a Fourth Amendment search.  The Court issued a summary reversal of the North Carolina Supreme Court’s non-search decision and remanded the case to the state courts to determine whether the search is reasonable based on the totality of the circumstances.

    Because of society’s strong interest in preventing child sexual abuse, as well as the overall contempt with which sex offenders are often viewed, it might be easy to assume that the North Carolina courts should find the search to be reasonable.  Don’t be lulled by the opprobrious nature of Grady’s prior crimes, however.  Based upon the facts in Grady, the ankle bracelet search at issue is premised on a future-looking ongoing search – a search that is conducted in the absence of probable cause, or even reasonable suspicion, that a crime will be committed.  If this search is upheld as reasonable, it opens the door to attachment of devices and monitoring in countless other situations.

  • March 31, 2015
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    The controversy over Indiana’s recently enacted Religious Freedom Restoration Act shows the importance of context in understanding a law. The bill signed by Indiana Governor Mike Pence is very similar to the federal Religious Freedom Restoration Act (RFRA) and laws that exist in 19 states. But the timing of the enactment of the Indiana law and the rhetoric surrounding it give every reason to believe that it was intended to allow businesses in Indiana to discriminate against gays and lesbians based on claims of religious freedom. Governor Pence reinforced this impression when on Sunday talk shows he repeatedly refused to deny that it would have exactly this effect.

    Governor Pence constantly emphasizes that the Indiana law is much like the federal RFRA signed by President Clinton in 1993. He stresses that nothing within the Indiana law expressly authorizes discrimination against gays and lesbians.

    That is true, but Governor Pence and supporters of the Indiana law are ignoring its context. Why is Indiana adopting the law now, 25 years after Employment Division v. Smith changed the law of the free exercise clause and 22 years after the enactment of the federal RFRA?

    It is clear that Indiana’s goal is to permit businesses to discriminate against gays and lesbians. Last June, in Burwell v. Hobby Lobby, the Supreme Court for the first time held that secular corporations can claim to have a religious conscience and free exercise of religious belief. In fact, the protection of corporations and businesses is much more explicit in the Indiana RFRA than in the federal statute.

    The Indiana RFRA comes soon after the decision of the United States Court of Appeals for the Seventh Circuit declaring unconstitutional the Indiana law prohibiting same-sex marriage and soon before the Supreme Court is likely to recognize a right to marriage equality for gays and lesbians. It is telling that repeatedly in his interviews, Governor Pence refused to deny that the Indiana law would have the effect of permitting businesses to discriminate based on sexual orientation. He also was emphatic that there would be no expansion of rights for gays and lesbians on his “watch.”

    This is why there are loud protests against the Indiana law and calls for boycotts of Indiana. If Indiana does not mean to allow such discrimination based on sexual orientation, it should amend the law to provide that no one can discriminate against others based on race or sex or sexual orientation or religion based on the statute or on the grounds of religious beliefs. 

    Governor Pence has refused to say that he favors such an amendment to the law. He can’t have it both ways:  either the Indiana law was meant to allow discrimination against gays and lesbians and the vehement objections to it are justified, or the law was not meant to permit discrimination against gays and lesbians and it should be amended immediately to say this. Discrimination in the form of the refusal to do business with a person because of his or her religion or race or sex or sexual orientation is wrong whether based on religion or anything else. Until Governor Pence and the supporters of the law recognize this and amend the law to say this, the protests and boycotts are justified.