Category: 3-LawSometimeCommentary

On December 9, 2015, the Supreme Court heard oral argument in Fisher v. University of Texas at Austin. This is the second time the case has come before the high court. -- Abigail Fisher, a white female, applied for admission to the University of Texas but was denied. Fisher sued the University and argued that the use of race as a consideration in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment. The district court held that the University’s admissions process was constitutional, and the U.S. Court of Appeals for the Fifth Circuit affirmed. The case went to the Supreme Court (Fisher I), which held that the appellate court erred in how it applied the strict scrutiny standard, improperly deferring to the University’s good faith in its use of racial classifications. On remand the Fifth Circuit again ruled in favor of the University, deeming its use of race in the admissions process narrowly tailored to a legitimate interest in achieving “the rich diversity that contributes to its academic mission.” -- The question in this case is whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher I. -- To discuss the case, we have Joshua P. Thompson who is Principal Attorney at Pacific Legal Foundation.

On December 8, 2015, the Supreme Court heard oral argument in Evenwel v. Abbott. As required by the Texas Constitution, the Texas legislature reapportioned its senate districts after the publication of the 2010 census, formally adopting an interim plan that had been put in place for the 2012 primaries. Plaintiffs, who are registered Texas voters, sued the Texas governor and secretary of state, asserting that the redistricting plan violated the one-person, one-vote principle of the Fourteenth Amendment’s Equal Protection Clause, by failing to apportion districts to equalize both total population and voter population. A three-judge district court ruled in favor of the state officials. -- On appeal, the question before the Supreme Court is whether the three-judge district court correctly held that the “one-person, one-vote” principle under the Equal Protection Clause allows States to use total population, and does not require States to use voter population when apportioning state legislative districts. -- To discuss the case, we have Andrew Grossman, who is Associate at Baker & Hostetler, and Adjunct Scholar at The Cato Institute.

On November 10, 2015, the Supreme Court heard oral argument in Tyson Foods v. Bouaphakeo. Peg Bouaphakeo and the rest of the plaintiffs in this class action are current and former employees of Tyson Foods. They claim that Tyson violated the Fair Labor Standards Act by not paying them for time spent putting on and taking off protective clothing at the beginning and end of the work day and before and after lunch. The district court certified the class, and the jury returned a multi-million dollar verdict in their favor. Tyson argued on appeal that certification was improper due to factual differences among plaintiffs, but the U.S. Court of Appeals for the Eighth Circuit affirmed the district court. -- The questions before the Supreme Court are twofold: (1) Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample; and (2) whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages. -- To discuss the case, we have Karen Harned, who is Executive Director of the National Federation of Independent Business Legal Center.

On January 19, 2016, the Supreme Court heard oral argument in Heffernan v. City of Paterson. Jeffrey Heffernan was a police officer for the City of Paterson, New Jersey. A fellow police officer observed Heffernan picking up a campaign sign for the mayoral candidate running against the incumbent. Although Heffernan disclaimed any political motives and said he was merely picking the sign up for his mother, his supervisor demoted him. Heffernan sued Paterson claiming a violation of his First Amendment rights, but lost on the grounds that, his supervisor’s erroneous belief notwithstanding, the fact that Heffernan was not actually engaged in political activity doomed his claim. The U.S. Court of Appeals for the Third Circuit affirmed the trial court’s judgment. -- The question before the Supreme Court is whether the First Amendment bars the government from demoting a public employee based on a supervisor's perception that the employee supports a political candidate. -- To discuss the case, we have Adele Keim, who is counsel at The Becket Fund for Religious Liberty.

On this episode, Dahlia asks why the Supreme Court has been almost absent as a campaign issue, despite the fact that the next president could have the opportunity to reshape the Court’s bench.  She is joined by UC-Irvine law professor Erwin Chemerinsky.

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In Heffernan v City of Paterson, the Supreme Court must decide whether a government worker can be punished for a political belief his employers attribute to him – rightly or wrongly. This week, Dahlia speaks with lawyers on both sides of the topsy-turvy case.

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On January 11, 2016, the Supreme Court heard oral argument in Friedrichs v. California Teachers Association. Under California law and existing Supreme Court precedent, unions can become the exclusive bargaining representative for the public school employees of their district and establish an “agency shop” arrangement requiring public school employees either to join the union or pay a fee to support the union’s collective bargaining activities. Although the First Amendment prohibits unions from compelling non-members to support activities unrelated to collective bargaining, in California non-members must affirmatively “opt out” to avoid paying for these unrelated or “nonchargeable” expenses. -- Here a group of public school employees sued the California Teachers Association and various other entities, arguing that the agency shop arrangement itself--as well as the opt-out requirement--violated the First Amendment. The district court denied their claim and the U.S. Court of Appeals for the Ninth Circuit affirmed based on existing precedent and the 1997 Supreme Court decision Abood v. Detroit Board of Education. -- The two questions now before the Supreme Court are: (1) Whether the Abood precedent should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech. -- To discuss the case, we have Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, Laurence A. Tisch Professor of Law, New York University School of Law and Professor Emeritus and a senior lecturer at the University of Chicago Law School.

This week, the Supreme Court will hear a case that could undercut the ability of public sector unions to raise money. Dahlia is joined by Cato

Institute’s Ilya Shapiro and U. of Michigan’s Sam Bagenstos, who submitted briefs on opposite sides of the case.

Please let us know what you think of Amicus. Our email is amicus@slate.com.

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Dahlia speaks with attorney Mary Kathryn Nagle about Dollar General Corporation v.

Mississippi Band of Choctaw Indians, a major Native American rights case argued at the Supreme Court earlier this month.

Please let us know what you think of Amicus. Our email is amicus@slate.com.

Subscribe to our podcast here. You can find past episodes of our show here.

Podcast production by Tony Field.

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On December 14, 2015, the Supreme Court decided DIRECTV v. Imburgia. This case involves a class action lawsuit against DIRECTV by various California customers. Among other things, the agreement between DIRECTV and its customers contained a waiver of any right by either party to undertake class arbitration, unless “the law of your state” made such waivers unenforceable. At that time class arbitration waivers were unenforceable under California law, but in a subsequent case the United States Supreme Court held that this California rule was preempted by the Federal Arbitration Act (FAA). Concluding that the parties had intended to apply the rule as it existed prior to the Supreme Court decision, California trial and appellate courts refused to enforce the arbitration provision. The question before the Supreme Court was whether the FAA permitted this outcome; namely, the application of state law that had since been preempted by the FAA. -- By a vote of 6-3, the Supreme Court reversed the judgment of the California Court of Appeals and remanded the case. Justice Breyer delivered the opinion of the Court, holding that the arbitration provision must be enforced because the California appellate court’s interpretation was preempted by the FAA. -- Justice Breyer’s opinion was joined by the Chief Justice and Justices Scalia, Kennedy, Alito, and Kagan. Justice Thomas filed a dissenting opinion. Justice Ginsburg filed a dissenting opinion, in which Justice Sotomayor joined. -- To discuss the case, we have Cory Andrews, who is Senior Litigation Counsel at the Washington Legal Foundation.