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This was a huge week at the Supreme Court. In the final week of the session, the court handed down three major decisions and Justice Anthony Kennedy announced his retirement. We've summarized the cases and their implications below.
Bottom Line: 5-4 decision. State government workers are not required to pay fees to unions they have not joined because of the 1st amendment protection on free speech.
Summary: “At issue in Janus was whether state government workers who don’t want to join the union representing them could nevertheless be forced to pay fees to support the union under a union security agreement,” from the Supreme Court Blog. This decision overturned the 1977 ruling in Abood v. Detroit Board of Ed. Unions stand to lose a large portion of their income following a loss in membership as a result of the courts’ decisions.
Analysis: Ed Whelan summarizes the major issue in this case, “In 2014, the American Federation of State, County, and Municipal Employees (AFSCME) donated $400,000 to the Planned Parenthood Action Fund, which in turn funded political candidates who support Planned Parenthood’s abortion agenda. May a government employee who is a faithful Catholic, as a condition of continued employment, be required to pay AFSCME a monthly agency fee?”
Majority opinion: From Justice Alito, “We recognize that the loss of payments from non-members may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members. But we must weigh these disadvantages against the considerable windfall that unions have received under Abood for the past 41 years. It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely.”
Dissent: From Justice Kagan, “There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this Nation’s law— and in its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”
Travel Ban: Trump v. Hawaii
Bottom Line: 5-4 decision. The court upheld President Trump’s ability to restrict immigration from countries who do not follow the United States guidelines and among people whose entry could be “detrimental to the interests of the United States.” These countries include Iran, Syria, Yemen, North Korea, Libya, Somalia, and Venezuela.
Analysis: The travel ban has been framed as a ban on Muslims entering the country. Deroy Murdock has provided excellent commentary at NR, “Despite the Left’s now-yawn-inducing screams of ‘racism,’ this policy has nothing to do with Islamophobia. And it never did. It concerns U.S. national security and counter-terrorism.” In his majority opinion Chief Justice Roberts pointed out that three predominantly Muslim countries, Iraq, Sudan, and Chad, have been removed from the list in the previous months for bringing their immigration procedures in line with U.S. regulations. In light of the border debate, immigration is one of the hottest points of contention among the two parties and the public. If Alexandria Ocasio-Cortez’ primary win is any indication, (she is advocating for the abolition of the Immigration and Customs Enforcement Agency) this issue is going to continue to occupy center stage. Murdock is worth reading in full.
Majority Opinion: From Chief Justice Roberts, “Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness of the policy. We simply hold today that plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim.”
The Justices in the majority also repudiated and officially overturned the decision in Korematsu v. United States to consing Japanese-Americans to labor camps during WWII. Chief Justice Roberts, “Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U. S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.”
Dissent: From Justice Sotomayor, “Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus.” She goes on to detail President Trump’s consistently negative statements regarding Muslims and their entry into the United States. On the rationale for her dissent, “Put simply, Congress has already erected a statutory scheme that fulfills the putative national-security interests the Government now puts forth to justify the Proclamation. Tellingly, the Government remains wholly unable to articulate any credible national-security interest that would go unaddressed by the current statutory scheme absent the Proclamation. The Government also offers no evidence that this current vetting scheme, which involves a highly searching consideration of individuals required to obtain visas for entry into the United States and a highly searching consideration of which countries are eligible for inclusion in the Visa Waiver Program, is inadequate to achieve the Proclamation’s proclaimed objectives of “preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their [vetting and information-sharing] practices.”
Bottom Line: 5-4 decision. In a landmark decision for the pro-life movement and NPOs of every kind, the court ruled that Crisis Pregnancy Centers are not required to give information on abortion to their
Summary: California's FACT act required pro-life pregnancy centers to provide specific pieces of information. From the Supreme Court Syllabus, “Clinics that are licensed must notify women that California provides free or low-cost services, including abortions, and give them a phone number to call,” and, “Unlicensed clinics must notify women that California has not licensed the clinics to provide medical services.” The court ruled that this was an unconstitutional overreach on the part of the state and that this act was unconstitutional.
Analysis: In the Atlantic, Emma Green writes, “Because the law selectively regulated only certain kinds of facilities, Thomas said, it ran the risk of only limiting the speech of those who disagree with the state’s views on abortion.” This is part of the ongoing battle of information in the abortion industry. Kin to the laws governing whether or not a woman must see an ultrasound, this ruling also allows pro-life groups another procedural protection. In addition, Justice Kennedy issued a second reprimand to a state (the first being Colorado in the Masterpiece Bakery Case) for imposing an ideology on its citizens. Since the courts are increasingly being used to fight the culture wars, the pushback from Justice Kennedy in both cases was reassuring and refreshing.
Majority Opinion: In the majority opinion, Justice Thomas wrote that the FACT act, “targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech.”
In his final concurring opinion and a scathing rebuke of the state of California, Justice Kennedy wrote, “This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression,” and, “For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these.”
Dissent: From Justice Breyer, “The Act does not, on its face, distinguish between facilities that favor pro-life and those that favor pro-choice points of view. Nor is there any convincing evidence before us or in the courts below that discrimination was the purpose or the effect of the statute.”
Cole Feix is the founder of So We Speak and a regular writer. Follow him on Twitter, @cfeix7.
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