The Supreme Court will decide in 2019 whether a Virginia law that bans uranium mining is preempted by the Atomic Energy Act, the U.S. law governing the processing and enrichment of nuclear material.
The case, Virginia Uranium, Inc. v. Warren, will require the court to interpret laws governing nuclear fuel production. But its most significant, long-term impact might be the glimpse it provides into the court’s view of the proper balance between federal regulatory power and the rights of states in setting their own policies. Continue reading →
Supporters of the youthful plaintiffs in the case rally outside the 9th Circuit Court of Appeals on Oct. 29, 2018. (Photo: Peg Hunter/flickr/cc)
The nation’s top court on Friday turned down the Trump administration’s latest attempt to put the brakes on a landmark lawsuit brought by a group of young people who charge that the federal government has violated their constitutional rights by actively causing climate instability.
“The youth of our nation won an important decision,” said Julia Olson, executive director and chief legal counsel of Our Children’s Trust and co-counsel for the youth plaintiffs. She said the finding by the U.S. Supreme Court “shows even the most powerful government in the world must follow the rules and process of litigation in our democracy.” Continue reading →
“Mitch McConnell should follow the Mitch McConnell rule. Let the American people have a say when women’s health and equal rights are on the line.”
As the #MidtermsBeforeSCOTUS hashtag began to take off on Wednesday, that was how Sen. Elizabeth Warren (D-Mass.) responded to the news that Supreme Court Justice Anthony Kennedy is retiring, a move that gives President Donald Trump the chance to nominate a second ultra-conservative justice and push the high court even further to the right.
The “McConnell rule” Warren cites is Senate Majority Leader Mitch McConnell’s infamous 2016 declaration that no Supreme Court justice can be confirmed during an election year—a completely fabricated directive that allowed McConnell to steal a high court pick from former President Barack Obama. Continue reading →
Demanding unlicensed anti-choice health centers “stop the lies” they tell women who are facing unwanted pregnancy, reproductive rights advocates on Tuesday railed against the U.S. Supreme Court’s 5-4 decision in which the majority ruled that so-called “crisis pregnancy centers” can withhold crucial health-related information from patients.
“Fake” health centers were able to secure their victory thanks to the “stolen seat” inhabited by Justice Neil Gorsuch, noted groups including NARAL Pro-Choice America.
“Five male Supreme Court justices gave crisis pregnancy centers the right to lie to women today,” said Heidi Hess, CREDO Action co-director, in a statement. “Rather than affirm women’s right to control their bodies and their lives, the Court voted to control women, and to set the stage for even more attacks on our reproductive rights.” Continue reading →
With forced arbitration agreements, “a worker who is not paid fairly, discriminated against, or sexually harassed, is forced into a process that overwhelmingly favors the employer—and forced to manage this process alone, even though these issues are rarely confined to one single worker,” write EPI’s Celine McNicholas. (Photo: Ron Cogswell/flickr/cc)
The U.S. Supreme Court on Monday dealt a blow to worker rights, saying that employers can bar their employees from banding together to challenge workplace abuses including wage theft and sexual harassment.
MSNBC host and legal analyst Ari Melber summed up the 5-4 decision (pdf) by tweeting: “Supreme Court rules that you have the right to your day in court, unless a corporation effectively makes you give up that right.” Continue reading →
“Neil Gorsuch knows where his bread is buttered,” notes Ian Millhiser of ThinkProgress. (Photo: Cleanup Carl/Twitter)
Protestors gathered outside Trump International Hotel in Washington Thursday as Supreme Court Justice Neil Gorsuch delivered the keynote speech at an event hosted by a right-wing advocacy group—a move critics argued crosses fundamental ethical boundaries, given that the venue is currently the subject of numerous emoluments lawsuits that could soon reach the Trump-appointed judge’s desk.
“By headlining this event, Gorsuch will personally enrich the very man who appointed him to his lofty position,” notes Ian Millhiser of ThinkProgress. “And he will enable the very mechanism that allows Trump to profit off the presidency.” Continue reading →
Anthony M. Kennedy, Associate Justice of the Supreme Court of the United States, swears in Supreme Court Justice Neil M. Gorsuch on Monday, April 10, 2017, in the Rose Garden of the White House in Washington, D.C. Photo: Public domain
Legal experts immediately sounded alarm upon learning that Gorsuch is set to be the featured speaker at the event, which is hosted by the conservative group The Fund for American Studies. Continue reading →
The Supreme Court recently decided that Trinity Lutheran Church should be eligible for a Missouri state grant covering the cost of recycled playground surfaces. Though the state originally rejected the church’s application on grounds of separation of church and state, the Supreme Court ruled that this rejection was, in fact, religious discrimination.
The case’s impact will probably reach well beyond playgrounds.
As a scholar of education law, I’ve been following the Trinity Lutheran case and what it could mean for the hottest issue in education: school choice. Where in the past states have decided for themselves whether religious schools are eligible for school vouchers and scholarship tax credits, the Trinity Lutheran decision likely signals that the Supreme Court will soon require states to include religious private schools in their programs. Continue reading →
If Trump’s nominees are confirmed by the Senate, Republicans will control the NLRB for the first time in nearly a decade. (Photo: AFSCME/Twitter)
In a little-discussed move that could spell disaster for unions and workers in the near future and over the long-term, President Donald Trump on Tuesday night announced the nomination of William Emanuel—a lawyer for a firm that represents large corporations—to fill a vacant seat on the National Labor Relations Board (NLRB).
Emanuel, as Reutersnoted, is a member of the Federalist Society, an ultra-right-wing group of lawyers and donors that has been credited with producing the list of possible Supreme Court nominees the Trump administration flaunted during his presidential campaign.
These hearings often are contentious. That was the case for Justice Clarence Thomas in the early 1990s. And they surely won’t be a cake walk this time, given Democratic anger over Republican inaction on Merrick Garland, former President Barack Obama’s nominee to replace Justice Antonin Scalia, who died in February 2016.
An obvious question for Judge Gorsuch is his view of the court’s 2010 ruling in Citizens United v. Federal Elections Commission. That five-to-four decision divided sharply along perceived partisan lines. It affected the speech rights of corporations and unions in funding political ads shortly before elections. Committee Democrats no doubt will grill Gorsuch about Citizens United.
As the director of the Marion B. Brechner First Amendment Project at the University of Florida, I would like to suggest at least three other timely and vital questions he should be asked about speech rights – but that I doubt he will face.
Capturing cops on camera in public
The first question I’d pose to Gorsuch involves an issue the Supreme Court has never tackled – does the First Amendment protect a person’s right to record police officers doing their jobs in public places?
It’s a vital question in light of incidents such as the April 2015 shooting in the back of unarmed African-American Walter Scott by white police officer Michael Slager in South Carolina. A video of it was captured on a smartphone by barber Feidin Santana while walking to work. It was key evidence in Slager’s murder trial – which ended with a hung jury.
Without guidance from the Supreme Court about recording cops in public venues, lower courts have had to sort it out for themselves.
Just last month, the U.S. Court of Appeals for the Fifth Circuit concluded in Turner v. Driver that “First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place and manner restrictions.” That’s a positive step in terms of creating a constitutional right to record cops within the Fifth Circuit, which includes Texas, Louisiana and Mississippi. But just what constitutes a “reasonable” restriction is extremely vague and problematic, especially because judges usually defer to officers’ judgments.
Worse still, some courts haven’t even recognized any First Amendment right to record police.
Gorsuch thus should be asked: “Do citizens have a First Amendment right to record police doing their jobs in public places and, if there is such a right, what – if any – are the specific limits on that right?”
Gorsuch should be questioned about the First Amendment right to peaceably assemble and the limits on that right affecting political demonstrations on public streets, sidewalks and parks. The Supreme Court privileges such “quintessential public forums” for picketing and protests, and it carefully reviews any restrictions imposed there on speech and assembly. Would Gorsuch follow that tradition of protection?
Disturbingly, The New York Times reported earlier this month that lawmakers in more than 15 states are considering bills that would curb, to varying degrees, the right to protest. Some measures, such as Florida Senate Bill 1096, do so by requiring a special event permit be obtained before any protest on a street, thus stifling spontaneous demonstrations that might occur after a controversial executive order or a startling jury verdict.
Gorsuch thus should be asked: “What, if any, limits are there on the First Amendment right to engage in political speech in public spaces, including streets, sidewalks and parks?”
The right to offend
Finally, I’d ask Gorsuch for his views about the First Amendment right to offend. It’s an important topic today for three reasons.
First, protesters may use offensive language to capture attention and show the passion behind their views. The Supreme Court traditionally protects offensive political speech, as it famously did in 1971 in Cohen v. California. There it ruled in favor of Paul Robert Cohen’s First Amendment right to wear a jacket with the words “F— the Draft” in a Los Angeles courthouse hallway.
Second, some believe there’s a pall of political correctness in society, particularly in higher education. Some students may be deterred from using certain language or expressing particular viewpoints for fear they will offend others and thus be punished.
Third, the Supreme Court is set to rule in the coming months in a case called Lee v. Tam. It centers on the power of the U.S. Patent and Trademark Office to deny an Asian-American band called The Slants trademark registration over that name because it allegedly disparages Asians. The court heard oral argument in the case in January.
I’d thus ask Gorsuch: “When does offensive expression – in particular, offensive speech on political and social issues – lose protection under the First Amendment?”
Gorsuch already has submitted written answers to the Judiciary Committee on some issues, but not on the questions raised here. These topics – filming cops in public, protesting on streets and sidewalks, and using offensive language – seem especially relevant in a turbulent Trump era.