ACSBlog

  • July 11, 2014
    Guest Post

    by Catherine Fisk, Chancellor’s Professor of Law, University of California Irvine School of Law

    As I have argued elsewhere, in striking down an Illinois law authorizing the state to require unionized home care workers to pay their fair share of the cost of union representation, the Supreme Court in Harris v. Quinn disregarded its longstanding rule that it does not decide questions of state law and failed to reconcile the result with the First Amendment rights of government workers or the Court’s other cases on when compulsory fees constitute compelled speech. 

    First, under Illinois law, government-paid and government-regulated home health-care workers are state employees. Justice Alito’s majority opinion in Harris disregarded state law when it invented a vague new category of non-“full-fledged” government employees who have greater First Amendment rights than other workers to refuse to pay the costs of union representation.

    Second, if under Garcetti v. Ceballos, and United States Civil Service Commission v. National Association of Letter Carriers, government employees have no First Amendment rights to speak on the job on matters of public concern or to engage in political activity on their own time, why do some government employees have a First Amendment right to refuse to pay for services that their union is legally required to provide them?

    Third, the Court failed to explain why fair share fees differ from compulsory payment of lawyers’ bar dues, which the Court approved in Keller v. California State Bar.  To quote Keller, substituting only “home care workers” for “legal profession,” Illinois has an “interest in regulating [home health-care workers] and improving the quality of [home health-care] services.”

    Yet there is a way forward. As I argue with Ben Sachs, where unions are unable to require objecting workers to pay fees – whether it’s in right-to-work states or in work situations that fall under Harris v. Quinn – we should get rid of the rule of exclusive representation. Non-fee payers wouldn’t be subject to the terms of the collective bargaining agreement, they wouldn’t have to interact with their employer through a collective agent, and they wouldn’t be required to pay anything to a union they didn’t vote for. Unions, for their part, would be required to represent only those workers who actually want representation.  Another possibility is that governments wishing to bargain with a single representative on behalf of their workers could agree to pay the cost of the representational services on behalf of all workers. No worker would then be compelled to pay anything to a union and the dissenting workers’ First Amendment rights would not be violated.

  • July 11, 2014
    Guest Post

    by Caroline Mala Corbin, Professor of Law, University of Miami School of Law

    There is much to lament in the Supreme Court’s Burwell v. Hobby Lobby decision, which held that first, closely held for-profit corporations like Hobby Lobby may bring religious liberty claims under the Religious Freedom Restoration Act (RFRA), and second, that the contraception mandate – the requirement that health insurance plans provide contraception at no additional cost – violated Hobby Lobby’s RFRA rights. Thanks to the decision, owners who are religiously opposed to contraception may exclude it from their employees’ health plan.  For several reasons, the winners are corporate owners, and the losers are all the men and women who must work for them. 

    First,  Hobby Lobby allows owners of for-profit corporations to have their cake and eat it too. One of the main reasons people incorporate their businesses is to gain the protection of limited liability, which shields owners from the liabilities of their corporation. For example, the debts of the corporation are not the debts of the owners. After Hobby Lobby, owners are considered separate and distinct from their corporations for purposes of limited liability, but one and the same for the purposes of religious rights. In other words, the owners and corporations are alter-egos when it is convenient, and not when it is not. That is not how the law is supposed to work.

    Second, at the same time, Hobby Lobby virtually ignores the rights of employees. The Justices could barely bring themselves to acknowledge that a religious exemption created any kind of burden on the thousands of workers who just lost their contraception coverage. Instead, in a footnote (a placement in keeping with the Court’s marginalization of employees), the Court characterized the contraception mandate as a burden but a potential religious exemption as merely the loss of a benefit. Apparently, only corporate owners are burdened. The bottom line is that the owners’ rights are privileged over their workers’ rights. Never mind that health insurance is part of employees’ compensation, and owners should not be able to dictate how employees spend their own earnings. And never mind that sincere religious obligations can point towards contraception use as well as away from it, as people may have faith-based reasons for limiting their family size.

  • July 11, 2014

    by Lara Schwartz

    Because of July Fourth, we will recap two weeks of judicial nominations activity. On Monday, July 7, the Senate confirmed Cheryl Ann Krause by a vote of 93 to 0 to be Judge on the U.S. Court of Appeals of the Third Circuit. She has been a partner at Dechert LLP and a lecturer at the University of Pennsylvania Law School. 

    Judicial emergencies continue to affect Americans’ access to justice, as explained in this Dallas Morning News editorial.  

    There are now 62 current vacancies and 29 nominees for current vacancies. There are 22 future vacancies and one nominee for a future vacancyThere are 21 judicial emergencies (5 circuit, 15 district). 

    For more information see the latest from “In the News” and “Recommended Readings” on JudicialNominations.org, a project of ACS.

  • July 11, 2014

    by Nicholas Alexiou

    Reginald Dwayne Betts tells his story of being in solitary confinement as a juvenile, before he was ever tried, in the ACLU’s Blog of Rights.

    Florida executed Eddie Davis via lethal injection on Thursday evening for the 1994 rape and murder of an 11-year-old girl. Mark Berman at The Washington Post reports that Davis’ execution was the fourth in the U.S. since the botched execution of Clayton Lockett in Oklahoma.

    The New York TimesCharlie Savage reports on a lawsuit filed in the U.S. District Court for the Northern District of California against the government’s Suspicious Activity Reporting database.

    At MSNBC, Emma Margolin explores how the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc. could negatively impact the LGBT community.

  • July 11, 2014

    by Paul Guequierre

    The Orlando Sentinel is reporting Florida's re-drawn congressional map intentionally favors Republicans in violation of the anti-gerrymandering standards voters approved in 2010 and will have to be re-drawn, according to a ruling late Thursday from a Tallahassee judge. Leon County Circuit Judge Terry Lewis, who found particular problems in two central Florida seats, went to the root of the problem in his decision, quoting President George Washington's farewell address warning of associations of "cunning, ambitious and unprincipled men" who could subvert the will of voters. Lewis went on to write the case "goes to the very foundation of our representative democracy."

    With gerrymandering becoming a nationwide problem in the wake of the 2010 Republican wave, Florida voters in 2010 passed two constitutional amendments known as the Fair Districts amendments which required lawmakers to draw legislative and congressional seats more compactly, within existing geographic and local government boundaries and without intentional favoritism toward political parties or incumbents. Shortly after the passage of the amendments, Republicans drafted their gerrymandered districts and the Florida Legislature passed its first attempt at maps. The Florida Supreme Court in 2012 ruled the state Senate seats violated the mandate and ordered them redrawn, after the League of Women Voters of Florida and other groups filed suit in state court, alleging Republican lawmakers violated the Fair Districts standards.

    In his ruling, Lewis found fault with Central Florida districts, in particular, District 5 held by Corrine Brown, D-Jacksonville, which Lewis wrote was unnecessarily drawn to protect Brown, and District 10 held by Daniel Webster, R-Winter Garden, which "was drawn to benefit the Republican Party and the incumbent."

    Lewis determined GOP lawmakers, staffers and consultants worked together behind the scenes to draw Republican-friendly seats, writing there was "too much circumstantial evidence of it, too many coincidences" to uphold the maps.

    Lewis found Republicans had "made a mockery of the Legislature's proclaimed open and transparent process" by working to draw partisan maps "in the shadow of that process."

    Read more on the case and Lewis’ decision here.