National Law Journal

Supreme Court Brief

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Tony Mauro

Marcia Coyle

Dec 19, 2018

Emboldened by their victory last term, anti-union organizations have returned to the Supreme Court with a new challenge, this time to unions' exclusive representation. We take a look at the latest petition and how the justices may react to it. States suing other states don't always convince the justices to take their original cases. The U.S. solicitor general recently recommended against two that involve eggs, veal and pork. We are taking next week off and hope you also enjoy family and friends over the holidays. Best wishes for a terrific new year. We'll be back in 2019! Feedback always welcome at and

Unions Face New High Court Challenge

Anti-union forces were victorious last term in the U.S. Supreme Court in their challenge to mandatory "fair share" fees. Now they're back in the high court with a constitutional attack on unions' exclusive representation system.

The conservative Ohio think tank Buckeye Institute is following in the wake of the fee-fight leaders—the National Right to Work Foundation and the Competitive Enterprise Institute—in wielding the First Amendment in the public employee union arena.

The institute is the driving force behind the case Uradnik v. Inter Faculty Organization. In the case, a Minnesota college professor claims labor unions can't lawfully represent a public sector employee who has declined to join the union. The institute has filed similar challenges in Maine and Ohio.

Baker Hostetler partner Andrew Grossman is taking the lead on the petition. Grossman was an amicus counsel in the two recent high court challenges to union fair share fees—Friedrichs v. California Teachers Association and Janus v. AFSCME, the 5-4 decision last term.

>> Here's what the petition argues: Grossman contends lower courts have refused to apply constitutional scrutiny to exclusive representation schemes because of a mistaken view that the justices approved those arrangements in a 1984 decision, Minnesota State Board for Community Colleges v. Knight.

The 1984 decision, Grossman argues, did not consider a compelled speech or association challenge to public-sector exclusive representation. The only claim was that public workers had a right to be heard by the state in certain “meet and confer” sessions with union representatives, he contends.

"It is a striking anomaly that, following Janus, public workers may not be compelled to subsidize a union’s speech but may still be forced to accept that speech, made on their behalf by a state-appointed representative, as their own," Grossman writes. The high court, he argues, should correct that anomaly.

>> Who should be watching this case? The federal government and most states and local governments have exclusive representation systems when a majority of their workers chooses to unionize. Employers in both the private and public sectors will follow this challenge, as they did the union fair share fee fight, because of any spillover effect on the private sector.

>> Will the court take the case? The high court's near-absolutist First Amendment supporter—Justice Anthony Kennedy—is no longer on the bench. However, the four other justices who voted with him in Janus still are: Chief Justice John Roberts Jr. (who is also a particularly strong First Amendment judge) and justices Clarence Thomas, Neil Gorsuch and Samuel Alito Jr., who is often hostile to unions generally. Organized labor opposed the nomination of Justice Brett Kavanaugh. Only four votes are needed to grant review.

Saying 'No' to Original Cases

State-versus-state battles over laws requiring humane treatment of hens, pigs and other farm animals have spilled over into the U.S. Supreme Court, where the U.S. solicitor general recently urged the justices to shut the door on them.

Almost every term has an original case of some kind lodged with the justices. In the eight years of the Obama administration, four original cases were filed. The Obama solicitor general recommended that the justices accept two and deny filings in two.

In the nearly two years of the Trump administration, there have been three—all of which the Trump solicitor general urged the justices not to take.

Recommending against a state's motion to file an original complaint, the solicitor general's standard line begins: "This is not one of the rare cases that warrants the exercise of this court’s original jurisdiction."

>> But does the Supreme Court really have discretion to turn away a complaining state with an original case?

Veteran high court advocate William Consovoy of Consovoy McCarthy Parks answers "no" in an interesting amicus brief in the recent original case Missouri v. California.

"The concept of discretionary original jurisdiction is, at best, 'questionable,'" Consovoy wrote, on behalf of the Center for Consumer Freedom. He notes that Justices Clarence Thomas, Samuel Alito Jr. and retired Justice John Paul Stevens have challenged that discretion in dissents from denials of motions to file original complaints. And the concept of discretionary jurisdiction has been strongly criticized by some federal courts scholars, he adds.

The justices' various rationales for denying motions to file these complaints, he argues, are inconsistent with "first principles." In controversies between states, he writes, "over which the Supreme Court has exclusive jurisdiction, to not exercise original jurisdiction is to effectively deny the existence of federal jurisdiction altogether." His "first principles" arguments might resonate with originalist justices Neil Gorsuch and Brett Kavanaugh.

What are the fights about in the solicitor general's recent recommendations?

>> In Missouri v. California, Missouri and 12 other states contend that California's Egg Laws violate the commerce clause and are preempted by federal law because they prohibit the sale of eggs in the state from hens confined in an enclosure that fails to meet certain standards. They argue that their residents and state institutions will pay higher egg prices because of California's laws.

Solicitor General Noel Francisco tells the justices there is no federal preemption of California's laws and resolving the commerce clause issue would involve "complex factual disputes that are better suited to a district court."

>> In Indiana v. Massachusetts, 13 states led by Indiana have a similar beef with Massachusetts's Prevention of Farm Animal Cruelty Act. That law bars businesses from knowingly selling within Massachusetts shell eggs, whole veal meat or whole pork meat that is the product of animals "confined in a cruel manner." They also raise commerce clause and higher price arguments. Francisco once again recommended denial, stating that "both on standing and the merits, it would be necessary to resolve complex factual disputes that are better suited to a district court."

>> Although the justices' decision on whether to take those two original cases is pending, they did follow then-acting Solicitor General Jeffrey Wall's recommendation to deny the motion to file in New Mexico v. Colorado. New Mexico sought injunctive relief and damages from Colorado for river contamination from abandoned mines in Colorado. Justices Thomas and Alito would have granted New Mexico's motion.

SCOTUS Headlines: What We're Reading

>> SCOTUS and the ACA:
"The president's many tweets focused on the judiciary signal a belief that his appointees would side with him. But that might not even be true with newest justice, Brett Kavanaugh. As an appeals court judge in Washington, DC, Kavanaugh declined to rule against the law as he sidestepped the merits of a dispute on procedural grounds." [CNN] The Washington Post has more here.

>> No rush: "Supreme Court Associate Justice Brett Kavanaugh is starting what could be decades on the bench with a sense of caution that has put him at odds with his fellow conservatives." [USA Today]

>> Judges speak out: Federal and state judges last week criticized the disparagement of the judiciary by President Donald Trump and others and urged lawyers, journalists and the public to defend and better understand what they do. [NLJ] ICYMI: California Chief Justice Tani Cantil-Sakauye, who was among the judges speaking out, said she dropped her Republican party label in response to the controversial confirmation of Brett Kavanaugh.

>> Time to pay up: A Gibson, Dunn & Crutcher fee petition in the D.C. Circuit puts new focus on the Justice Department's switched position in SCOTUS in the case Lucia v. SEC. [NLJ]

>> Ex-Thomas clerk gets the nod: Former Clarence Thomas clerk and ex-Allen & Overy partner Heath Tarbert got the Trump administration's nod to lead the U.S. Commodity Futures Trading Commission. [NLJ]

>> Who's clerking at SCOTUS? "Two University of Virginia School of Law alumnae are clerking at the U.S. Supreme Court for the 2018 term: Katie Barber ’15 for Justice Ruth Bader Ginsburg and Megan Lacy ’10 for Justice Brett Kavanaugh." [University of Virginia School of Law]

>> Justices warned: "This week, the Internet came to the U.S. Supreme Court to warn the justices of the potentially disastrous consequences of a broad ruling in a case that, ostensibly, has nothing to do with social media sites or search engines." [Reuters]

>> What's facing the court: "The court, with its strong 5-4 conservative majority, is facing requests from an aggressive Trump administration to weigh in early on many of its most controversial policies in areas including immigration, LGBT rights, asylum and reinstating the citizenship question on the census."[CNN]


Supreme Court Brief will return the first week of the new year. Have a great holiday. —Marcia and Tony

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