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Alito’s (really) weird lobbying hobby, and its chaotic results

As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.

In holding that Conestoga, as a “secular, for-profit corporation,” lacks RFRA protection, the Third Circuit wrote as follows:

“’General business corporations do not, separate and apart from the actions or belief systems of their individual owners or           employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions                separate and apart from the intention and direction of their individual actors.’ 724 F. 3d, at 385 (emphasis added).”

All of this is true—but quite beside the point. Corporations, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything at all.

— Samuel Alito, writing for the majority in Burwell v. Hobby Lobby, Inc.

What the judge who wrote the Third Circuit opinion that the Court reversed yesterday meant, obviously, is that general business corporations do not, irrespective of the actions or belief systems of their individual owners or employees, exercise religion. The sentence was inarticulate, but its following sentence made clear that that judge was distinguishing the ability to believe from the ability to taken actions. In any event, irrespective of what the Third Circuit judge meant, the fact remains–and Alito states–that a corporation is simply a form of organization used by human beings to achieve desired ends.

The desired ends of for-profit corporations is to make a profit, not to practice or advance a religion.  Alito’s right that it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. It also is important to keep in mind that the purpose of this fiction is to provide protection, for human beings, related to the purpose of the corporation.  Which for Hobby Lobby and other for-profit corporations, is to make money.

Alito then explains via sleight of hand that in enacting the Religious Freedom Restoration Act (RFRA) Congress intended to include for-profit corporations as protected “persons”:

As we noted above, RFRA applies to “a person’s” exercise of religion, 42 U. S. C. §§2000bb–1(a), (b), and RFRA itself does not define the term “person.” We therefore look to the Dictionary Act, which we must consult “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise.” 1 U. S. C. §1.

Under the Dictionary Act, “the wor[d] ‘person’ . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” Ibid.; see FCC v. AT&T Inc., 562 U. S. ___, ___ (2011) (slip op., at 6) (“We have no doubt that ‘person,’ in a legal setting, often refers to artificial entities. The Dictionary Act makes that clear”). Thus, unless there is something about the RFRA context that “indicates otherwise,” the Dictionary Act provides a quick, clear, and affirmative answer to the question whether the companies involved in these cases may be heard.

We see nothing in RFRA that suggests a congressional intent to depart from the Dictionary Act definition, and HHS makes little effort to argue otherwise. We have entertained RFRA and free-exercise claims brought by nonprofit corporations, see Gonzales v. O Centro Espírita Beneficiente União do Vegetal, 546 U. S. 418 (2006) (RFRA); Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___ (2012) (Free Exercise); Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993) (Free Exercise), and HHS concedes that a nonprofit corporation can be a “person” within the meaning of RFRA. See Brief for HHS in No. 13–354, at 17; Reply Brief in No. 13–354, at 7–8.19

This concession effectively dispatches any argument that the term “person” as used in RFRA does not reach the closely held corporations involved in these cases. No known understanding of the term “person” includes some but not all corporations. The term “person” sometimes encompasses artificial persons (as the Dictionary Act instructs), and it sometimes is limited to natural persons. But no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.20Cf. Clark v. Martinez, 543 U. S. 371, 378 (2005) (“To give th[e] same words a different meaning for each category would be to invent a statute rather than interpret one”).

No conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations–other than the definition that Alito provided in that first paragraph I quoted and the paragraph preceding the one in which he says that no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.* The statute isn’t called the Religious Freedom Restoration Act for nothing; it’s called that because it intends to restore the right to humans to engage in religious practices that the Supreme Court then-recently had removed–in the case at issue, the right to use peyote in certain religious ceremonies.  The nonprofit religious entities in each of the earlier cases that Alito cites were religious organizations–they were established for the purpose of joining together to practice a religion, not to make a profit on secular goods or services. The statement that Congress intended to include secular for-profit corporations as protected under the RFRA is a false statement of fact and is absurd.

There most certainly is something about the RFRA context that “indicates otherwise.”  The something is that the statute concerns freedom of religion by, as Alito concedes, human beings, and that there was no conceivable understanding by anyone at the time that this law was enacted that secular corporations–whether nonprofit or for-profit–practice religion or hold religious beliefs.  HHS created a workaround for religious nonprofits, not because they are nonprofits but because their reason (or at least an important reason) for their very creation and membership is the practice of religious beliefs by their human members.

Alito’s opinion strongly implies that corporations have First Amendment rights only as derivative of their human owners.  As I said in my post yesterday, and believe all the more today, both of Alito’s opinions–Harris v. Quinn as well as Hobby Lobby–appear to have been written as majority or plurality opinions decided on constitutional rather than on statutory grounds, and converted into purely statutory rulings after the initial votes among the justices and assignment of the opinions to Alito.  Alito apparently lost one or two members of his bare majority or four-member plurality late in the game in each case, and substantial parts of each of the final opinions.

And I am not the only one who is saying that. Nor the only one who thinks the respective resulting opinions are barely coherent. And as a ruling solely interpreting the RFRA as intended by Congress to protect religious beliefs of “persons” who are actually secular corporations, Hobby Lobby is Lewis Carroll-level nonsense.

But I am gratified that Alito, in a majority opinion, has acknowledged that constitutional and statutory rights of corporations are solely derivative of their human shareholders’ constitutional and statutory rights.  I’ve been arguing here at AB for years now, including in posts about Hobby Lobby in the last few months, that Kennedy’s opinion in Citizens United intimated exactly that by saying that corporations have First Amendment speech rights because they are associations of people; the corporation’s free-speech rights are derivative of its shareholders’. And I’ve been saying, as I did once again in my post yesterday, that corporate CEOs have no legitimate right to exercise proxy First Amend speech rights of shareholders without the shareholders’ authorization.  Including shareholders, or legitimate proxies for shareholders, such as public-employee pension fund managers.

I’m also gratified–deeply, in fact–that the examples Alito used to illustrate his point that corporations have legal rights only in order to protect their human owners, officers and employees were the examples that I’ve used in several AB posts discussing the purpose of legal protections conferred by the legal fiction of corporate personhood. Extending Fourth Amendment protection to corporations indeed protects the privacy interests of employees and others associated with the company. And protecting corporations from government seizure of their property without just compensation does protect all those who have a stake in the corporations’ financial well-being.

But I, unlike Alito, have noticed that Fourth Amendment and Fifth Amendment (property seizure without just compensation) protections are extended to corporations because the corporate computers, office files, and such that are protected under the Fourth Amendment, and the corporate property protected under the Fifth Amendment, relate to or exist because of the purpose of the corporation: to run a business and, for for-profit ones, make a profit.  Secular for-profit corporations rarely own church properties, and if they do, it’s as rental real estate. Corporate shareholders, officers and employees benefit from Fourth Amendment protections for corporate property at the office, but their personal property–a cell phone, a personal laptop, a purse, a briefcase, a jacket with pockets, family photos–that is in their office on corporate property or in a corporate-owned vehicle or in their homes is protected solely by their own, not any corporate, Fourth Amendment rights.

Alito’s statements are preposterous.  But, in my opinion, they also preclude extension of Hobby Lobby corporate religious rights to publicly held corporations.  Alito doesn’t try to reconcile his statement that corporate legal rights derive from the humans who are employed by the corporation as well as by its owners and officers with the fact that the ruling allows the corporation to adopt the religious beliefs and practices solely of its owners irrespective of its employees’ religious beliefs. For that reason, I wonder whether even the part of the opinion singing the praises of legal rights derived from humans associated with the corporation was written by another justice–Kennedy, maybe–and inserted shortly before the opinion was released.

Either way, the formal conflating of owners’ rights and corporate rights does strike me (as I said in my post yesterday) as enabling and even inviting further piercing of the corporate veil, in ways that may not make the Chamber of Commerce very happy.

*Sentence typo-corrected to insert a missing “no” in the second half, and edited slightly for clarity. 7/1 at 8:56 p.m.

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First-Reaction Thoughts About Hobby Lobby and Harris v. Quinn

I haven’t read the opinions, concurrence, or dissents in either Hobby Lobby or Harris v. Quinn, so these comments are based on news summaries and quick commentaries by others.  But the biggest surprise in Hobby Lobby, I think, is the express approval, in the opinion and in Kennedy’s concurrence, of HHS’s on-the-fly setup devised in (I think) 2012 as a workaround to allow nonprofit religious organizations (e.g., Catholic colleges) to avoid directly providing the insurance coverage while still enabling the employees to receive the coverage.

The 5-4 outcome of the case apparently relied on this; it was not dictum. Kennedy’ concurrence makes that clear.  (Which is itself a surprise, given Kennedy’s virulent dissent two years ago to Roberts’ opinion upholding much of the ACA itself.)

This is really important, not just as it applies to the contraception issue but also because the HHS-devised workaround has, of course, been attacked by the right as exceeding the authority of the ACA.  As have the other several HHS-promulgated tweaks to the substance of the statute and to its implementation (for example, delays in requiring certain mandates). The Hobby Lobby opinion effectively accepts as legally permissible these substantive and timing HHS-created modifications by HHS to the ACA.

The other thing that strikes me is that, although one commentator writing a few minutes after the release of the opinion thinks otherwise, the opinion does, I think, open the door to diminished corporate-veil protections.

The opinion did not address the First Amendment free-exercise-of-religion clause.  Instead, it interpreted a statute, the Religious Freedom Restoration ACT (RFRA) as protecting closely held for-profit corporations.  The statute provides that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”  The opinion holds that corporations are “persons” within the meaning of the statute.

The commentator–one of the SCOTUSblog folks writing on their live blog as the Court was in session this morning; I can’t remember who, though–pointed out in answer to a question that the opinion interprets a federal statute and that corporate-structure/corporate-veil statutes are state statutes. The opinion doesn’t alter those state statutes.

But it does, I would think, enable and even invite other incursions through the corporate veil, via federal or state statute or state-court interpretation of rights of potential litigants.

The opinion also apparently tacitly acknowledges, without actually deciding, that First Amendment rights of corporations are solely derivative of their owners’ First Amendment rights, and therefore cannot be treated as though delegated to the personal choices of the CEO.  Thus, the ruling in Hobby Lobby is limited to very-closely-held for-profit corporations.  This obviously is a concession to the dismay expressed by many, many people (certainly myself included, here at AB) at Citizens United’s cavalier delegation of individual publicly-held-corporate shareholders’ First Amendment speech rights to the corporation’s CEO for purposes of donating corporate money to political campaigns. Corporate shareholders, including pension funds, are now entitled to sue to block corporate political donations.

Although Alito wrote the majority opinion in both Hobby Lobby and the other case decided today, Harris v. Quinn, neither opinion reflects what he had hoped for.  Harris, like Hobby Lobby, was decided on as narrow grounds as possible–on grounds that avoid constitutional interpretation and that are decided on other grounds limited in scope to, really, the specific facts in the case.

In my post yesterday on Harris, I suggested the possibility (albeit remote, I thought) that Harris could follow somewhat in the footsteps of an opinion in a case called Bond v. United States, decided on June 2.

The majority voted to hear Bond, intending to use it to make a sweeping Conservative-Movement-cause constitutional pronouncement and overrule a longstanding Supreme Court precedent.  But instead, somewhere along the way after the case was argued and John Roberts had assigned himself to write the opinion, one of the five Republicans–I suspect that it was Roberts himself–had a change of heart. Roberts’s opinion has vestiges of the original draft, but decides the case on other (liberal, actually) grounds.  What was intended initially as a major federalism (i.e., states’ rights to violate federal constitutional rights that the political right don’t care about) ruling based upon the alleged structure of the Constitution ended up as a blow to rampant abuse of prosecutorial discretion.  Hooray.

In Harris, the Conservative-movement cause was not neo-federalism but instead the decimation of labor unions, especially of public-employee ones.  The mechanism was to be the First Amendment speech clause, and Alito, who openly coveted the assignment to write the opinion–earlier, in another case, he said he wanted to overrule a 1977 Court opinion, Abood v. Detroit Board of Education, that was the foundation of the relevant aspect of current labor law–had indicated at the argument in January that he thinks the very existence of public-employee unions violate the First Amendment.

But the best-laid plans went somewhat awry again, and this time apparently it was Scalia (of all people) who threw the first wrench. Scalia reportedly made it known at the argument that the First Amendment speech challenge to the “agency fee” concept in union representation of non-union employees in “union shops”  just doesn’t make sense, in his opinion, even if the union is a public-employee one.

My guess is that Scalia originally agreed only with the bare outcome, but on the limited grounds on which Alito’s opinion ultimately rests: that under the specific Illinois law at issue, the 1977 opinion that approved the “agency fees” didn’t apply to the employees at issue in Harris–home healthcare employees paid by the state’s Medicaid system–because they are employees partially of the state and partially of the customer. My guess also is that somewhere along the way, Alito lost another vote for what was to be his four-justice plurality opinion; one of the four jumped ship and joined Scalia. Alito then was compelled to effectively adopt Scalia’s concurrence as the bottom line–the ruling–in his opinion, but was not compelled to remove the reams of dictum from it that Kagan, in her dissent reportedly mocks at length.*

If my speculation is correct, the substance of the Harris opinion bearing Alito’s name was dictated, literally, by Scalia. In any event, this wasn’t quite the day of victory for Alito & Friends that they had envisioned.  Really, it wasn’t even close to that.

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*Typo in sentence corrected, 7/1 at 1:34 p.m. 

UPDATE: Most of what I wrote in this post based on the early summaries and analyses of the opinions, but before I had read the opinions themselves, holds up surprisingly well, I think.  I don’t think you can read the opinion in Harris without recognizing the real likelihood that most of Alito’s opinion was written as one overturning Abood, maybe as a plurality or maybe as a majority opinion, and then one or two of the justices who had signed on to overturning Abood changed his mind.

I hope to write an update post later today, though. 7/1 at 1:37 p.m.

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Shaken, Not Stirred: The Supreme neo-Framers (likely) will continue their perversion of the First Amendment speech clause tomorrow.

In an email this morning, Bill H asked me whether I know much about a case called Harris v. Quinn, in which the Supreme Court will announce the likely 5-4 majority’s ruling tomorrow.  I responded:

I know LOADS about it, Bill, and wrote about it–and about a bizarre comment by Alito during the argument on the case–right after the argument back in Jan. and have mentioned it two or three times since then.  It is really striking that the Supreme Court agreed to hear the case in order to consider the claim: that requiring public employees to pay a fee (not the full union dues, but instead some small percentage of the membership dues as compensation for the union’s legal obligations by which employees who opt out of membership nonetheless gain the benefits of the union contract (pay, benefits, job protections), violates the employee’s First Amendment speech rights.

But what’s downright stunning is that at the argument, Alito said he believed that the very existence of public-employee unions violates the First Amendment because–seriously; he said this–the non-member union-contract beneficiary might want small government.  This, from someone whose first official act as a justice was to join Kennedy (the opinion’s author), Scalia, Thomas and Roberts in ruling that a district attorney did not violate an assistant district attorney’s First Amendment speech rights by retaliating against him for writing an internal memo saying that he believed that a cop had falsified some evidence in obtaining a search warrant.  That opinion, in a case called Garcetti v. Ceballos, was and remains extremely controversial–it was shocking, really–and played a key role in a case, called Lane v. Franks, that the Court decided two weeks ago.

I suggested in my posts about Harris and about that comment by Alito’s during the argument that the non-union beneficiary of a public-employee union contract had the option of quitting his job or refusing the negotiated benefits in order to reduce the size of government.

I had predicted from the outset that the opinion in Harris would be issued on the same as the opinion in Hobby Lobby, so that news coverage of Hobby Lobby would overwhelm coverage of Harris, and I was right. Because of the way in which the Court divvies up majority-opinion-writing among the justices, it is clear that Alito was assigned to write the opinion in Harris.

There is a (very) outside chance that one justice changed his mind since the week of the argument (when the vote was taken and the majority-opinion-writing was assigned), and that someone other than Alito therefore is writing a 5-4 opinion rejecting the outrageous First Amendment claim.  Something sort of like that happened in a case called Bond v. US, argued last Oct. and decided [on Jun. 2], a case that they planned to use to advance their states’-rights juggernaut but instead ended up making an important statement about abuse of prosecutorial discretion–a ground on which they never, ever, would have even considered agreeing to hear the case (okay, maybe they would have, but only because the prosecutor was a federal one, not a state one; but even so, probably not).  In that case the actual outcome didn’t change, nor did the author of the opinion (Roberts), but the basis for the ruling, and the statement of law, changed significantly.

I call Bond the Stirred, Not Shaken opinion.  I have a theory about the reason for Roberts’ late change of heart, and I’ve been intending to post in-depth about it but haven’t yet.

I do expect an outrageous 5-4 opinion by Alito in Harris, though.

Yes, the undermining of public-employee unions–like state-courts’ rights to baldly violate individuals’ non-gun-ownership, non-religious, non-real-estate-regulation-er-takings constitutional rights, and to supersede Congress’s Fourteenth and Fifteenth Amendment powers to buttress, say, individuals’ voting rights–is definitely on the List of Circa 1983 Movement Conservative Legislation-via-Supreme-Court-Pronouncement THINGS TO GET DONE.

And done, these things will get. Now that the chief justice has expressly conceded that their end game has been all along a Court-mandated plutocracy in which legislators’ constituents are those who pay to become one, irrespective of any connection between the location of the constituent/benefactor’s voting residence and the legislator/beneficiary’s legislative district–now that these five justices have used the First Amendment speech clause to formally institute a poll tax, and redefined the term “constituent,” and therefore “democracy,” beyond former recognition*–it’s time for them to get back to other uses of the newly reconstructed First Amendment speech clause.  In the name of the Framers.

The original ones, of course!

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*In his Apr. 2 opinion in McCutcheon v. FEC, Roberts redefined “constituent” as an American who, irrespective of place of residence, donates to a political campaigns in sufficient amounts to buy the candidate or incumbent’s proxy vote on legislation, and “democracy” as plutocracy.  The specific statement is:

[C]onstituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and respon­sive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials.

Ergo–voila! It’s official; we have a plutocracy.

Just in case you were wondering.

[Clarification added 6/29 at 5:08 p.m.]

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Follow-up to “Scalia’s Curious Memory Lapse”: Is the Supreme Court about to limit its holding in Garcetti v. Ceballos?

Okay, first things first.  And the first thing is that when you (okay, when I) put the word “after” instead of “before” in a key sentence, and the error (which in this instance occurred because of a cut-and-paste sentence-edit typo in a complex sentence) makes the sentence nonsensical, you’re gonna be stepping on your own punch line.*  Which is what I did in my post Tuesday titled “Scalia’s Curious Memory Lapse,” in the first sentence of a paragraph that, corrected, reads:

Ah, but that’s because Lane was unaware of the 2006 opinion in Garcettti v. Ceballos.  The second one issued, that is, less than a month after* Samuel Alito was sworn in as Sandra Day O’Connor’s replacement; not the first one issued, in the last few days before O’Connor formally retired. (Yes, as I explain in that post of mine from last January that I linked to above, Garcettti v. Ceballos has quite an interesting little twist to it, procedurally.)

The second thing is, um … I think I’ll just quote my exchange with Robert Waldmann in the Comments section, which should suffice:

ROBERT: I was puzzled when reading the first few sentences of this post, because I had assumed it was about *another* amazing Scalia memory lapse. The other unrelated astonishing error was Antonin Scalia’s totally incorrect citation of an opinion written by eminent Jurist uh Antonin Scalia [link].

“”Scalia’s dissent also contains a hugely embarrassing mistake. He refers to the Court’s earlier decision in American Trucking as involving an effort by EPA to smuggle cost considerations into the statute. But that’s exactly backwards: it was industry that argued for cost considerations and EPA that resisted,” Farber wrote on the environmental law and policy blog Legal Planet. “This gaffe is doubly embarrassing because Scalia wrote the opinion in the case, so he should surely remember which side won! Either some law clerk made the mistake and Scalia failed to read his own dissent carefully enough, or he simply forgot the basics of the earlier case and his clerks failed to correct him. Either way, it’s a cringeworthy blunder.””

Wow. Too bad supreme court justices can’t be impeached for senility (or for the standard conduct of signing opinions and dissents actually written by their clerks). Too much worse that no Republican will be impeached ,while Republicans control the House, or convicted, while there are 34 of more Republican senators. But two amazing howlers in about a week must be one for the history books.

ME: Robert, yeah, when I wrote the post and the title two days ago, I didn’t know yet about that weird error by him in his dissent in the EPA case. I should have changed the title yesterday; I think I’ll tweak it now, even though the post is old now. [I did.]

The “memory lapse” I’m talking about in this post isn’t actually a memory lapse, though. Scalia well remembers exactly what the situation was in Garcetti, and what the result was, because it’s critical to the arguments in Harris v. Quinn, which they’re deciding this term. It’s probably already been decided, and the dissent is being written now.

Thanks, Robert, for your comment.

I want to add here that I suspect that Scalia’s comment at the argument on Monday in Lane v. Franks that was the main subject of my earlier post–“I’ve never heard of this distinction, the First Amendment protects only opinions and not facts.  I’ve never heard of it.”–suggests that the Court is about to significantly limit its holding in Garcetti.

Which would be a good thing for prosecutors who want to inform their bosses that the police officer who sought the search warrant at issue apparently fabricated the “probable cause” for the warrant, or that the police officer who obtained the confession from a suspect did so by lying to the suspect, or that the police officer who dealt with the victim or witness insist or ensure that the victim or witness identify the suspect in a lineup as the perpetrator.  Or some such.  And it probably would be pretty good for innocent suspects, too.

Not so good, though, for cops who want to frame people.  Or for prosecutors who do, and aren’t on good terms with a colleague or two or with a subordinate. And you never know who might turn out to have a conscience.

This would be a big deal.

Meanwhile, about that real memory lapse by Scalia, in his dissent in EPA v. Homer City Generation, you can read the latest on it here.  The AP’s Mark Sherman nails it.

That federal gummint is always trying to get away with something! Even impersonating a trucking association.

*Sentence edited to correct a cut-and-paste typo. 4/2. Sighhh.

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Justice Scalia’s Curious Memory Lapse. NO, not the one everyone’s talking about. [Post typo-corrected]

Clarification appended below.

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During oral arguments in a freedom-of-speech case out of Alabama, several justices challenged the notion that public employees who testify truthfully about an issue of significant public concern aren’t shielded from retaliation by the First Amendment.

“What kind of message are we giving when we’re telling employees, you’re subpoenaed in a trial, go and tell a falsehood because otherwise you can be fired?” Justice Sonia Sotomayor asked attorneys in the case.

The Fifth Amendment protects state employees against self-incrimination on the witness stand, but “it doesn’t protect the department he works for from being incriminated,” Chief Justice John Roberts said.

Justices suggest public employees’ testimony is protected, Mary Orndorff Troyan, USA Today, today

It’s nice to know that the Fifth Amendment doesn’t protect the department he works for from being incriminated.  It would be nicer still to know that the First Amendment, so vaunted these days by the Supreme Court as allowing the purchase of legislative votes as long as there’s no formal purchase receipt issued by the legislator/seller, that that Amendment protects the truthful speech of public-employee whistleblowers, and not just the speech of public employees who don’t want to speak in support of big government by being compelled to pay a fee to the union that is negotiating the terms of their employment (pay, benefits, working conditions) and that will represent them in disputes with the employer.  (Okay, the last part of that compound sentence is based on a comment by Alito during argument in January in a case called Harris v. Quinn.  The opinion in the case hasn’t been issued yet.)

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The Supreme Court and Politics–Especially the current conservative majority’s appropriation of the First Amendment in the service of Republican Party electoral victories

Dan Crawford emailed me this morning with a link to Linda Greenhouse’s op-ed in today’s New York Times, titled “Law and Politics,” and asked me to post about it.  A more apt title for the op-ed, which a headline writer rather than Greenhouse (whose bailiwick is the Supreme Court) titled, would be “The Supreme Court and Politics,” as that is its sole subject.

The piece discusses work by eminent political scientist Robert A. Dahl, who died earlier this month at the age of 98, establishing a particular  theory about the Supreme Court: that, although there is some inevitable lag time, the Supreme Court normally fairly quickly recalibrates to follow sea changes in public opinion.

Here’s how I responded to Dan’s email:

Hi, Dan.  I’m a big fan of Linda Greenhouse, but I disagree with some of what she wrote. I think Dahl’s 1957 article is more out-of-date than she says.  I agree more with Jack Balkin, whom she mentions, and who writes a popular law blog called Balkinization.  I think that the current Court majority will remain deeply steeped in the specifics of the Reagan-era conservative legal movement, which involves some really weird doctrines that they claim as constitutional ones, some of which the public is clueless about and that therefore these justices pay no price in public opinion for.  I’ve alluded to this on AB from time to time, but have wanted for a while to write in more depth about it.

There’s one really big “sleeper” case, especially, that was argued at the Court recently and that I mentioned, but that I want to write in more depth about.  I do think that if the majority rules the way they clearly want to in that case, there will be more publicity about it than they expect, and more backlash.  Not as much as with Citizens United or even as much as with the Voting Rights Act case last year, but they expect almost none and I think they’ll be surprised that they’re wrong about that.

But the bottom line is that I don’t think this crowd cares that much about public opinion.  They’d prefer, of course, that no one notice what they’re doing, but I doubt that fear of public backlash will stop what amounts to a Reagan-era legislative agenda that these people clearly are hell-bent on forcing into law, much of it inoculated against reversal by Congress (a la the Ledbetter case, which Greenhouse mentions) by claiming some constitutional ground for the ruling. Ledbetter and many of their other pro-business and pro-state-and-local-government procedural/jurisdictional-rules Supreme Court opinions–interpretations-cum-rewritings of procedural or substantive statutes, some overtly fabricated by the Court in pretty clear violation of the Constitution’s Articles I and II (separation of powers)–can eventually be reversed by a Congress not in thrall to the Koch brothers. (Congress reversed Ledbetter before Citizens United.)  But when the Court couches its rulings as constitutional dictate, Congress can’t reverse them.

But there are some aspects that are peculiar to this particular majority, and that has received very little attention.  Always in the past (at least to my knowledge), the Court limited itself in major, sweeping rulings to issues raised by the parties.  This was true, certainly, in the New Deal rulings first striking down New Deal legislation and then reversing itself and upholding most of the legislation.  It also was true in every aspect of the Warren Court era–racial issues, First Amendment issues, criminal defendants’ rights, etc.–and then in the Burger Court era (e.g., Roe v. Wade).  And those cases always were brought not by some manufactured-issue ideologues, as occurs regularly now, but instead by normal-circumstance “cases and controversies,” as the constitutional phrase goes.

What is happening now is an orchestrated dance between rightwing conservative-movement lawyers and groups, and the Reagan, Bush I and Bush II justices, in which some really bizarre constitutional and statutory-interpretation arguments are made, and then adopted by the Court, dramatically but very often quietly rewriting parts of the Constitution (e.g., the Supremacy Clause, flipping it upside-down when applied to state judicial branches but flipping it back to serve conservative-movement dogma in other contexts) and procedural and substantive statutes. In fact, a hallmark of this crowd is the casual flipping back-and-forth as convenient–a hallmark especially of Scalia and Alito.

Beverly

The “sleeper” case I referenced is Harris v. Quinn, which was argued to the Court on Jan. 21.  At first blush a labor-law matter under the National Labor Relations Act (a.k.a., “Taft-Hartley”), but apparently a majority of the Court plans to turn it into a First Amendment case. At oral argument, Samuel Alito claimed that public-employee unions, by their very existence, violate the First Amendment speech and assembly rights of workers who don’t belong to the union, and Anthony Kennedy suggested that the longtime labor-law rule known as a “fair share” provision in public-employee union contracts, allowed by Taft-Hartley and previous Supreme Court opinions, violates the First Amendment’s “petition” clause (right to petition the government for a redress of grievances).  Something about some anti-union public employees who are concerned about “the size of government” and who therefore want to be fired or have their wages and pensions reduced.

Seriously.

An op-ed in the Washington Post by labor and employment lawyer Moshe Marvit, published the day before the argument in the case, summarizes the background:

On Tuesday the Supreme Court will hear arguments in Harris v. Quinn, a case that has been referred to as a “sleeper” by both conservatives and liberals and may turn out to be the most significant labor law case in decades. It was brought by the National Right to Work Legal Defense Foundation (NRTW), whose mission is to use “strategic litigation” to “eliminate coercive union power and compulsory unionism abuses,”in this case on behalf of several personal assistants who provide in-home services to persons with disabilities under Illinois’s Medicaid program.

NRTW argues that these home-care workers are not public employees and therefore should not have the right to exclusive representation by a union, nor should they have to pay either membership dues or a “fair share” fee for the union they have chosen to represent them. (“Exclusive representation” means that all workers are covered by a union so long as the majority have voted for it. A “fair share” provision requires workers who are not union members to pay a proportionate share of the costs incurred by the union to support the workforce in the collective bargaining process. Unions are not allowed to use “fair share” fees on any political activities.)

But that was then.  Then, being before the oral argument.  Now, it’s a First Amendment case concerning forced speech about the role of government, and the right of public employees to petition their government employer for a redress of the grievance of big government.  Public employees who are concerned about the size of government should be entitled to resign, or forego a pay or pension increase and demand a larger employee contribution for healthcare insurance.

Or at least they should be allowed to accept those benefits without contributing to the union’s expenses to obtain them for the workers.

This is as opposed to, say, shareholders–some of them via their pension funds, some of them through mutual funds, and almost all of them entirely unwittingly–who care every bit as much about the size of government as do those anti-union public employees.  And who the Supreme Court has said must be forced to support the political views of the CEOs who use corporate funds to secretly contribute to Republican PACs.  Especially views about the size of government.  Each corporation is a person–specifically, the person who is its CEO.  At least if the CEO is a Republican.

States, too, it now turns out, also are people, entitled to Fourteenth Amendment equal protection of the law, a constitutional provision heretofore accorded to individuals as against a state’s denial of equal protection of the law.  Who knew?  Well, whatever.

No, Harris was not about the First Amendment until the Republican justices decided (apparently) that it will be.  As the articles about this case that I’ve linked to above show, this is in contrast to a case called Garcetti v. Ceballos in early 2006.  Wikipedia explains:

Garcetti v. Ceballos, 547 U.S. 410 (2006), is a decision by the Supreme Court of the United States involving the First Amendment free speech protections for government employees. The plaintiff in the case was a district attorney who claimed that he had been passed up for a promotion for criticizing the legitimacy of a warrant. The Court ruled, in a 5-4 decision, that because his statements were made pursuant to his position as a public employee, rather than as a private citizen, his speech had no First Amendment protection.

The case was by no means incidentally Samuel Alito’s, um, very first case as a Supreme Court justice.  He insisted.  Again, Wikipedia explains:

The Supreme Court reversed the Ninth Circuit, ruling in a 5-4 decision delivered by Justice Anthony Kennedy that the First Amendment does not prevent employees from being disciplined for expressions they make pursuant to their professional duties. The case had been reargued following the retirement of Justice Sandra Day O’Connor, as the decision was tied without her; her successor, Justice Samuel Alito, then broke the tie.

The four dissenting justices, in three dissents written by Justices John Paul Stevens, David Souter, and Stephen Breyer, took issue with the majority’s firm line against the First Amendment ever applying to speech made within the scope of public employment, arguing instead that the government’s stronger interest in this context could be accommodated by the ordinary balancing test.

Actually, what happened is that the original 5-4 opinion was issued just before the Senate voted to confirm Alito as O’connor’s replace.  Technically, the opinion had not yet become final when Altio was sworn in, because the short time allotted the losing party to file a petition for reconsideration had not expired.  The Court had not granted a petition for reconsideration in the preceding four decades or so.  But Alito supplied the fifth vote to rehear the case in order to reverse the result.

Kennedy wrote the opinion for the new majority.  Wikipedia summarizes it:

The Court wrote that its “precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.” Instead, public employees are not speaking as citizens when they are speaking to fulfill a responsibility of their job.

Unless, of course, the job responsibility at issue is compliance with a labor agreement negotiated between a union and the employer.  Or if the statement at issue concerns something as unimportant as the legitimacy of a warrant rather than the all-important matter of the size of government.

Also in today’s New York Times, along with Greenhouse’s op-ed, is an article by Adam Liptak, the Times’ current Supreme Court correspondent, about a case to be argued at the Court on Monday that, as Liptak notes albeit obliquely, promises to illustrate one of the hallmarks of this Court.  A Court majority that itself routinely, casually rewrites procedural and substantive statutes and allows the lower federal courts to do the same, for decades, until ExxonMobil or Sprint petitions the Supreme Court about it, takes umbrage when it is the executive branch rather than the judicial branch that encroaches upon the Congress’s constitutional prerogatives. But only when the executive branch is headed by a Democrat.

A Court that has so brazenly and aggressively precluded access to federal court, and most certainly to itself, as a mechanism to petition the government for a redress of grievances–effectuating a key goal of the conservative movement from which these five justices all hail–is about to concern itself with the right of public employees to petition for small government by refusing to pay for their union representation.

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