Category Archives: Courts

The Supremes Get One Right

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Resoundingly so.  Janus v AFCME Council 31 is a case originating in Illinois concerning a public service union’s ability to collect a per centage of ordinary union dues—agency fees—from non-union members who work alongside the union’s bargaining unit in for a government agency.  A 40-year-old Supreme Court precedent, Abood v Detroit Board of Education, upheld this ability.

The Court’s opinion (a 5-4 majority) is summarized in the syllabus:

The State’s extraction of agency fees from nonconsenting public-sector employees violates the First Amendment. Abood erred in concluding otherwise, and stare decisis cannot support it. Abood is therefore overruled.

What Alito actually wrote is even more direct, and he wrote it at the outset of his opinion.

Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities. We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.

We upheld a similar law in Abood v Detroit Bd. of Ed….and we recognize the importance of following precedent unless there are strong reasons for not doing so. But there are very strong reasons in this case. Fundamental free speech rights are at stake. Abood was poorly reasoned.  …  Abood is therefore overruled.

Alito concluded his opinion even more forcefully.

This procedure [collecting an “agency fee”] violates the First Amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed.

The sad part of this resounding victory for individual liberty is that 5-4 vote; it should have been unanimous.  However, the liberal wing of the Court remained buried in its ideology that Government must be the solution.  Here, those four Justices held that an individual’s fundamental rights of free speech and free association must be held subordinate to the union’s government-created right to collect dues and “agency fees” from everyone whom it purports to represent in an employment unit.

The free speech problem arises when those agency fees are collected as a condition of employment by a government agency.  It isn’t possible for an inherently political entity to not engage in political speech, and so it isn’t possible for any negotiation—including over employment parameters—with that entity to not be inherently political in nature and so consisting of political speech.  Thus, forcing payment of an “agency fee” to the “representing” union is forced speech by the individual from whom the “agency fee” is collected.

The free association problem arises from the existence of any forced “agency fee” payment.  Such a mandate creates a forced association between the individual from whom the “agency fee” is collected and the union for and by which the money is collected.  This association occurs, tautologically, whether or not the individual might otherwise consent to, or actively seek, the association.  The forced nature of the association is maximally emphasized by the individual’s demonstrated objection to the association through his conscious decision to not join the union and further by his objection to paying the fee.

It’s unfortunate that the liberal wing does not see any of this.

The ruling can be seen here.

The Supremes Get Another One Right

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Sort of.  Mostly.

A deeply divided Supreme Court upheld President Donald Trump’s latest ban on travel to the US by people from several Muslim-majority countries, in a ruling Tuesday that hands the White House a victory on one of its most central—and controversial—initiatives.

Small point, and it’s on The Wall Street Journal, not the Supreme Court: it’s not a ban on travel, it’s a moratorium.  The moratorium will be lifted on each of those countries when it becomes possible to accurately vet travelers from those countries.  A ban is broad and permanent.

A failure of the Court came from the liberal wing.  Justice Sonya Sotomayor wrote, for instance,

A reasonable observer would conclude that the [ban] was motivated by anti-Muslim animus….

And

The majority…turn[s] a blind eye to the pain and suffering the [ban] inflicts upon countless families and individuals, many of whom are United States citizens.

This is rank, deliberate emotionalism at the expense of rational thought and objective analysis.  Sotomayor chose not to demonstrate where the animus exists in the Executive Order, choosing instead to bring in outside material not part of the case or of the EO in question.  Campaign rhetoric, which she chose to consider instead of the text in the present case, ceased to have relevance to anything once the election was completed.  Even more, bringing in outside material, evaluating a case on things other than the text of the EO, the law, the Constitution is a violation of the Justices’ oath of office: they’re sworn to uphold the law, the Constitution (and EOs executed in accordance with the Constitution), not to uphold other things convenient to them.

Sotomayor also chose to ignore the “pain and suffering” unvetted entry of terrorists and violent criminals “inflict upon countless families and individuals, many of whom are United States citizens.”

The larger failure is that this should have been a unanimous decision.  The liberal wing of the Court, though, remained mired in their ideology that the text of an Executive Order (or of a law or of the Constitution) is not the only thing before them in any case: extraneous material convenient to their predetermined opinion also must be brought in for support.

An Ego Move

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…by a flake.  Senator Jeff Flake (D R, AZ) says he’s going to block any and all judicial nominees until he gets his way.

Myself and a number of senators, at least a few of us, will stand up and say let’s not move any more judges until we get a vote, for example, on tariffs[.]

This is just another ego move by a flake Senator.  Were Jeff Flake serious about this, he would have moved before he rendered himself a lame duck Senator; there were plenty of questions on which he could have done this sort of thing besides tariffs.  He chose to wait, though, until there would be no consequences for his ego trip.

Now he’s ready to destroy the judiciary, to let it get populated by a later administration with activist judges and Justices for whom the law and the Constitution are mere suggestions, to be disregarded when they become inconvenient to those activists’ personal agendas.

The Supremes Get One Right

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The Supreme Court ruled Friday that authorities generally need a search warrant before they can obtain broad access to data that shows the location of cellphone users, a decision that sets privacy boundaries in the digital age.
The court, in a 5-4 opinion by Chief Justice John Roberts, cited the Fourth Amendment’s guarantee to be free from unreasonable government searches.

And

We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information[.]

Yewbetcha.

A Concept of Privacy

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Personal privacy and protections against warrantless searches got a boost from the Supreme Court earlier this week.

The Supreme Court said Tuesday that police need a warrant to search vehicles parked at private homes, the second time this month the justices rejected government arguments for expanding the “automobile exception” to Fourth Amendment rules against unreasonable searches.

The case at hand involved a stolen motorcycle parked in the driveway of a private residence and protected from the elements (and perhaps (even probably) from being seen by police) by a tarp.  A police officer recognized from Facebook postings the residence, saw the fact of a motorcycle under the tarp, entered the property, lifted the tarp, and looked over the motorcycle—all without a warrant.

Writing for the Court in an 8-1 decision, Justice Sonya Sotomayor wrote

Just like the front porch, side garden or area “outside the front window,” the driveway enclosure where Officer [David] Rhodes searched the motorcycle constitutes [the area where] activity of home life extends….

And

Given the centrality of the Fourth Amendment interest in the home and its curtilage and the disconnect between that interest and the justifications behind the automobile exception, we decline Virginia’s invitation to extend the automobile exception to permit a warrantless intrusion on a home or its curtilage[.]

Justice Samuel Alito was the lone dissenter.

…the officer should have been permitted to search the motorcycle visible in the driveway, just as he could have were it parked in a public street. “Officer Rhodes’s brief walk up the driveway impaired no real privacy interests,” he wrote.

Surprising out of Alito; it seems he doesn’t completely understand curtilage or of privacy.  Notwithstanding, I’d further curtail the motor vehicle exception* allowing warrantless searches to bar such from motor vehicles parked on the street in front of the vehicle owner’s residence (or beside it in the case of a corner lot) or parked in an apartment complex’s parking lot near the vehicle owner’s apartment or in the apartment renter’s designated parking slot.

 

*The motor vehicle exception to the requirement for search warrants allows warrantless searches based on a prohibition era ruling that motor vehicles were too mobile and could be moved before a warrant could be obtained.  That ruling was itself erroneous IMNSHO because it assumed that the police were incapable of keeping a motor vehicle under surveillance until the warrant arrived.