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Tag: "Supreme Court"

This Day in Labor History: January 6, 1909

[ 7 ] January 6, 2017 |

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On January 6, 1909, oral arguments before the Supreme Court concluded in the case of Moyer v. Peabody. The decision by the Court on January 18 gave official approval for the state militia or National Guard imprisoning people without the benefit of habeas corpus during a time of insurrection, the definition of which was of course left vague. This was one of many anti-worker Supreme Court decisions of the Gilded Age that made it extremely difficult for unions to operate with any sort of effectiveness.

In 1902, the Western Federation of Miners was organizing mill workers in Colorado City, Colorado. One company placed a spy among the organizers. This led the employer to fire 42 union members. Tensions rose at the mill and in February 1903, the WFM called a strike. Colorado governor James Peabody was an anti-union extremist who would use any method to eliminate the WFM, which had outraged employers in 1894 with an overwhelming victory in the state’s mines. Throughout Colorado that year, several strikes took place. Peabody worked with employers and private detective agencies such as the Baldwin-Felts, Thiel Agency, and of course the Pinkertons. Peabody called out the Colorado militia in response to the Colorado City strike, leading miners in Telluride and Cripple Creek to walk off their jobs. Mass arrests of strikers began that fall. Among those arrested was Charles Moyer, president of the WFM. Moyer had done nothing more than travel to Telluride to support the strike and sign a poster denouncing the mass arrests. He was then arrested for desecrating the American flag. This ridiculous charge allowed him to be released the next day, but he was immediately rearrested without any charges.

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The strike was soon crushed by Colorado and Peabody’s forces, but Moyer fought the obviously unconstitutional arrest he faced. He petitioned for a write of habeas corpus to a Colorado court. He received it but the Colorado attorney general refused to honor it. He appealed to the state Supreme Court, which ruled that his constitutional rights had not been violated by his arrest for supporting a strike. He then appealed to the U.S. District Court based in Missouri. These judges overturned the state court and granted him the writ once again on July 5, 1904. This finally forced Peabody to let Moyer out of jail. Moyer wanted full exoneration so he took his case to the U.S. Supreme Court. It eventually accepted it, with oral arguments taking place on January 5 and 6, 1909. By this time, Moyer had survived the framing of he and Big Bill Haywood for the 1905 murder of former Idaho governor Frank Steunenberg, thanks to the extremely shoddy case and the defense skills of Clarence Darrow leading to the rare court victory for unions during these horrible years.

Oliver Wendell Holmes wrote the decision for the unanimous court. The decision completely ignored whether the strike was an insurrection. It gave the governor complete discretion in making this determination, effectively saying that if the governor called out the National Guard, there was in fact an insurrection. He wrote, “But it is familiar that what is due process of law depends on circumstances. It varies with the subject-matter and the necessities of the situation.” And while it makes some sense for law to have limited flexibility dependent upon the particulars of a given situation, in this situation Holmes was giving employers and their bought politicians carte blanche to do whatever they wanted to labor unions. So long as there was an insurrection, then the governor could call out the state militia or National Guard and have them act accordingly. He left open the possibility than an exceedingly lengthy time behind bars might be open to another challenge but that was not what Moyer was after. This decision also avoided any of the sticky constitutional questions–since the states cannot declare war, can the executive of a state declare a state of war to exist? But as was common for Holmes, he found ways to exclude ideological or racial minorities from full citizenship; unfortunately, he was frequently joined in the Gilded Age Supreme Court by his colleagues.

Holmes’ decision in Moyer v. Peabody helped to radicalize the labor movement, especially in areas that had already seen the iron fist of state violence. With Holmes giving governors the right to use violence at will, moderate unionists had a harder time telling workers that capitalism might work for them. The Industrial Workers of the World would build their case for radical syndicalism upon this point, up to the point where the IWW was itself crushed by massive state-sanctioned violence, including the government allowing employers to do what they wanted to unions and with government crushing workers defending themselves against that violence.

The case was so shoddy that the Court largely ignored it. In 1932, it revisited the ability of a governor to unilaterally decide to call a strike an insurrection, when in Sterling v. Constanin, it decided that the governor of Texas doing the same as Peabody was not constitutional. That is until 9/11. Then the Bush administration was all over it because of the possibility to justify indefinite detention whenever the government declares a state of insurrection. It was heavily discussed in the 2004 case of Hamdi v. Rumsfeld and remains an extremely threatening decision to workers today as Republicans seek to return the nation to the Lochner years. And the Moyer v. Peabody years as well.

Although Charles Moyer eventually broke from Haywood and the IWW, he remained deeply involved in union politics for many years. He was in Hancock, Michigan when the Italian Hall disaster took place in 1913 and rallied the WFM in nearby Calumet to take care of their own, although this had the effect of telling impoverished survivors to not take much needed charity. While in Calumet, he was beaten and deported from the town while bleeding from his wounds. The state did nothing to find who did this to him. He continued to lead the former WFM, now Mine, Mill, until 1926, dying in obscurity and largely forgotten in 1929.

This is the 206th post in this series. Previous posts are archived here.

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The People Had Their Say

[ 84 ] December 2, 2016 |

Remember when the Republican Senate shredded the only norm—luck of timing—that stands between the Supreme Court’s standing as an institution and the implications of its complete politicization?

Here are some examples of the core logic that Republican officials used to justify their actions:

…. A lifetime appointment that could dramatically impact individual freedoms and change the direction of the court for at least a generation is too important to get bogged down in politics. The American people shouldn’t be denied a voice. —Grassley

…. We should let the American people decide the direction of the court. —Ryan

…. The only way to empower the American people and ensure they have a voice is for the next President to make the nomination to fill this vacancy. —Cornyn

…. The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be. —McConnell

Well, the American people did have their say. They cast, by a 2.6 million vote margin, a plurality of votes for a major-party candidate with, for instance, the most expansive views of reproductive rights in decades. Clinton and Trump both made clear position on Supreme Court appointments. The public made it clear, by 48%-46%, that they preferred Clinton. While the libertarian ticket sent contradictory signals on the Court, you could make a strong case that over 50% of the public explicitly, and easily, rejected Trump’s and his party’s promises on Court nominations.

The point, I think, is obvious. No one need argue that Trump’s tiny margin of victory in the Electoral College—and his decisive defeat in the popular vote—renders his Presidency illegitimate. But the GOP made very clear that they wanted to give the American public a voice in the process. Democrats should, likewise, make it very clear that the Republican party must listen to that voice. Trump must nominate a moderate. If he won’t, the Democrats should filibuster and force McConnell to choose between, on the one hand, the nuclear option* getting rid of it for Supreme Court confirmation and, on the other, convincing Trump to choose a more bipartisan candidate.

There’s a larger issue here. Democrats have every right to use Clinton’s “mandate” as an integral part of their message when they oppose extremist Republican policies. And where they can hoist the Republicans by their own rhetorical petard? All the better.

*See Emmryss’ comment.

 

The Senate and the Court

[ 86 ] October 31, 2016 |

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We’ve been hitting this point for months, but once again, if the Democrats don’t take the Senate, Republicans simply will not allow Hillary Clinton to name a justice to the Supreme Court, and very few if any to the lower courts. John McCain’s “flub” from last week saying this out loud was of course a flub only in that it was a little early to talk about it. But it’s certainly the plan.

In a stunning political move, conservatives are already strategizing on how to block any future Supreme Court nominee from moving forward during Hillary Clinton’s presidency before the election even happens.

“I don’t think there is precedent for it. It really does reveal just how politically charged and polarized our judicial politics have become,” said Charles Gardner Geyh, a professor of law at Indiana University who advised then-Sen. Joe Biden (D-DE) during the 1991 confirmation hearing of Justice Clarence Thomas. “We are at risk of losing legitimacy as a nation in terms of being able to govern effectively.”

A number of Republican lawmakers and scholars have already begun openly rationalizing why Clinton shouldn’t be allowed to appoint Supreme Court justices. (These are many of the same people who argued President Obama shouldn’t get a nominee in the last year of his term because it should be up to the person who wins the November election.)

Sen. Ted Cruz (R-TX) told reporters that the Senate would have a “debate” about whether to accept Clinton’s nominees and that there was nothing wrong with having just eight justices.

“You know, I think there will be plenty of time for debate on that issue,” Cruz told the Washington Post, when he was asked if the Senate would move forward with Clinton’s nominees. “There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have.”

Cruz’s suggestion that the Supreme Court may continue to operate without another justice under Clinton also casts the stakes of U.S. Senate races across the country in a new light. If Republicans do hold the majority, will they follow Cruz’s lead and refuse to move forward with any of Clinton’s nominees no matter the nominee’s record or qualifications?

I fail to see how this is stunning, unless you still believe that Mitch McConnell cares about Senate traditions. What’s stunning is that reporters would find this stunning. This is why it’s not more important to win the Senate than the presidency, but it is almost as important.

Previewing the Next Term

[ 34 ] June 28, 2016 |

I am no Supreme Court expert, but this preview of the next term looks promising, primarily because of what the Court is not going to hear. First and most importantly to me, the Court refused to rehear Friedrichs, meaning that the anti-public union fanatics have to start over at the lower courts. So that’s one piece of good news. The second is how apoplectic Sam Alito is that the Court refused to hear a case that will almost certainly reject religious liberty arguments that would allow pharmacists to choose whether they distribute birth control. He’s already whining about the future of the Court and his precious religious liberties that apply only to right-wingers seeking to oppress women or gays. Maybe he should go ahead and flounce off the court.

Geography and Law in the Evenly Divided Court

[ 90 ] March 30, 2016 |

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Is that flag at half-staff for Scalia or for the future of the American court system?

A couple of people in the Friedrichs posts yesterday were saying, “hey, this divided court thing ain’t too bad.” Well, that’s true so far as it goes. But it also causes a lot of problems. Among them is that because 4-4 splits just revert to the relevant circuit court without precedent, law begins to be divided by geography, creating potential long-term problems. Dayen:

Unlike a majority Supreme Court ruling, a 4-4 split doesn’t make binding precedent for the entire nation; it just upholds the ruling of the circuit court of appeals where it was decided, in this case the 9th Circuit. A separate challenge from another circuit court could produce a different interpretation of the law, and if the Supreme Court remains deadlocked, the same issue could have different legal outcomes in different parts of the country.

This is already happening. A case about giving gender-discrimination protections to spouses of borrowers of bank loans produced a 4-4 tie last week. The 8th Circuit had ruled that the bank didn’t have to extend Equal Credit Opportunity Act protections to spouses, and the Supreme Court affirmed that ruling; but the 6th Circuit separately made a different one, saying that spouses are eligible. So if you take out a loan in Missouri, jurisdiction of the 8th Circuit, you can legally be treated differently than if you take one out in Michigan, home of the 6th.

Theoretically, at least, this situation favors Democrats. Since Democratic presidents have had the opportunity to nominate judges in 16 of the last 24 years, the appeals court system has more Democratic appointees. In the 13 different circuits, Democrats have appointed the majority of judges in nine of them, while four (the 5th, 6th, 7th, and 8th) have a majority of Republican appointees. However, there are at least two Republican-appointed judges in every circuit court, meaning that across the federal judiciary, you can still draw a three-judge appellate panel with a Republican majority.

Since appellate courts often (though not always) follow Supreme Court precedent, a deadlocked Court also has the effect of locking in legal interpretations for the indeterminate future. Whether you see that as a good thing depends on how you feel about current law in a particular area. It likely means continuing to allow corporations and wealthy individuals to make unlimited donations to super PACs in line with the Citizens United ruling. It also means maintaining a woman’s right to choose in line with Roe v. Wade.

However, in cases with unsettled law or unique addendums, the regional Supremes can make very consequential rulings. For instance, in Whole Woman’s Health v. Hellerstedt, the 5th Circuit ruled last year that Texas’s regulations for abortion providers—including requirements that abortion doctors have admitting privileges to hospitals and that facilities maintain the same standards as surgical centers—didn’t impose an “undue burden” to getting an abortion and were therefore legal. If the Supreme Court splits 4-4 in the case, which it heard earlier this month, that ruling would be upheld for Louisiana and Mississippi as well as Texas, limiting abortion access for millions of women.

In the short-term, this might not be a huge deal. Were this to go on for years, as Dayen says, it would be a disaster for the nation.

The Corporate Court

[ 38 ] March 13, 2016 |

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There are two types of Supreme Court justices when it comes to corporate matters. There are those who are virulently pro-corporate. And there are those who are moderately pro-corporate. But there aren’t justices suspicious of corporations and whether it’s Obama or Hillary who actually names the next justice, that person is unlikely to represent anything looking like an anti-corporate or economically populist view.

At the same time, some argue that the Supreme Court under Chief Justice John G. Roberts Jr. has become perhaps the most business-friendly court in recent history. A 2013 study by Lee Epstein of Washington University in St. Louis, William M. Landes of the University of Chicago Law School and Judge Richard A. Posner of the federal appeals court in Chicago ranked justices according to their rulings in cases involving business. The findings, which Ms. Epstein and Mr. Landes updated through the 2014-15 term for this article, show that six of the 10 most business-friendly justices since 1946 sat on the Supreme Court at the time of Justice Scalia’s death.

President Obama has given little indication that he is likely to reverse this trend. Both of his previous nominees, Sonia Sotomayor and Elena Kagan, have been relative moderates on matters involving business, despite some progressive opinions in specific cases.

“They are not Hugo Black or William Douglas or Earl Warren,” said Arthur R. Miller of the New York University School of Law, who has written about the court’s friendliness toward business, referring to three prominent liberal justices.

A variety of factors can help explain the demise of economic populism on the Supreme Court, where it once had a solid constituency. In recent decades, business interests, led by the U.S. Chamber of Commerce, have played a much more active role in the confirmation battles over Supreme Court justices.

There is also the increasing partisanship of the United States Senate, which can prompt a Democratic president to select more moderate nominees in the hope of winning Republican votes.

Most important, however, may be a broad pro-business consensus within the upper ranks of the legal profession, one that has been more than two generations in the making.

Were Bernie Sanders to actually win, he would almost certainly name an anti-corporate nominee. Whether such a nominee could even win even all the Democratic votes however is an open question.

Erik Visits an American Grave, Part 18

[ 37 ] February 14, 2016 |

This is the grave of Oliver Wendell Holmes.

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Holmes of course is one of the most famous and important Supreme Court justices in American history. After barely surviving the Civil War (wounded a number of times and also barely defeated a case of dysentery), Holmes enrolled in Harvard Law School and then practiced admiralty and case law for about fifteen years in Boston. In 1881, he gave a series of lectures that became a famous book titled The Common Law. President Hayes considered him for a federal judgeship in 1878 but he demurred. But he was convinced in 1882 to take a seat on the Supreme Judicial Court of Massachusetts, where he became Chief Justice in 1899. In 1902, Theodore Roosevelt nominated him for the Supreme Court of the United States. Senator George Hoar attempted to block confirmation to protest Roosevelt’s imperialist policies that were shared by Holmes, but he eventually was confirmed. He quickly angered Roosevelt by voting against his position in Northern Securities. He authored many of the most important opinions in U.S. history, including in Schenck, Abrams, and Buck v. Bell that held up eugenics and forced sterilization. His record as far as the modern liberal looking back from a political perspective is mixed, but he’s one of the 5 most important jurists in the Court’s history.

Oliver Wendell Holmes is buried at Arlington National Cemetery, Arlington, VA, on the grounds formerly owned by the treasonous Robert E. Lee.

Scalia Dead

[ 422 ] February 13, 2016 |

Scalia is dead.

Associate Justice Antonin Scalia was found dead of apparent natural causes Saturday on a luxury resort in West Texas, federal officials said.

Scalia, 79, was a guest at the Cibolo Creek Ranch, a resort in the Big Bend region south of Marfa.

According to a report, Scalia arrived at the ranch on Friday and attended a private party with about 40 people. When he did not appear for breakfast, a person associated with the ranch went to his room and found a body.

Chief U.S. District Judge Orlando Garcia, of the Western Judicial District of Texas, was notified about the death from the U.S. Marshals Service.

U.S. District Judge Fred Biery said he was among those notified about Scalia’s death.

“I was told it was this morning,” Biery said of Scalia’s death. “It happened on a ranch out near Marfa. As far as the details, I think it’s pretty vague right now as to how,” he said. “My reaction is it’s very unfortunate. It’s unfortunate with any death, and politically in the presidential cycle we’re in, my educated guess is nothing will happen before the next president is elected.”

I’d like to think this kills all “the two parties are the same so who cares if Republicans win in 2016” arguments if Hillary wins the nomination. But then I also know Salon exists.

Why I Care More About the General Election than the Primary

[ 210 ] February 10, 2016 |

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People don’t understand why I am not FeelingtheBern as much as others. I’m a socialist after all, right? I am actually feeling it to some degree, but between having a cautious nature and being very much a historian, I don’t really do full-throttled cheerleading for anyone. But part of it is also that the general election is about 100 times more important than the primary and that’s what I am gearing up for. This is why it’s more important:

A divided Supreme Court agreed Tuesday to halt enforcement of President Barack Obama’s sweeping plan to address climate change until after legal challenges are resolved.

The surprising move is a blow to the administration and a victory for the coalition of 27 mostly Republican-led states and industry opponents that call the regulations “an unprecedented power grab.”

By temporarily freezing the rule the high court’s order signals that opponents have made a strong argument against the plan. A federal appeals court last month refused to put it on hold.

The court’s four liberal justices said they would have denied the request.

The plan aims to stave off the worst predicted impacts of climate change by reducing carbon dioxide emissions at existing power plants by about one-third by 2030.

This basically means that the climate requirements are going to be overturned based on the constitutional principle of 5 old conservative men hating hippies. Given my belief that a Sanders presidency isn’t going to be able to do anything close to what he is claiming (and honestly, the recent prison promise seems impossible), to me, the general is just far, far more important and where the real choice is to be made. That doesn’t mean people shouldn’t care about the primary. But this is what is shaping my preferring not to write about it too much.

The New Gilded Age Court

[ 13 ] January 25, 2016 |

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Above: Chief Justice John Roberts

Allow me to expand on Scott’s point from earlier about the Supreme Court becoming the postbellum Democratic Party incarnate. I’d say it is further than that. The current Supreme Court is the recreation of the Gilded Age courts. The same courts deciding Plessy and all the other cases of the late nineteenth century and early twentieth century that approved of Jim Crow, flushed the Civil War amendments down the toilet, stole land grants from Mexican-Americans, and took away any and all rights from Native Americans were the same courts providing new rights to corporations and deciding cases like Lochner.

Today, the same court once again flushing those Civil War amendments down the toilet is the same court that decided Citizens United and is about to kneecap organized labor in Friedrichs. Never mind that a lot of states like having functional public sector unions. In fact, never mind any evidence. This is about conservative ideology, as are the racial cases. The turn against Reconstruction is the just part and parcel of the larger turn against the 150 years of reform. Other parts are the turn against the Great Society, the turn against the New Deal, and the turn against the Progressive Era. The New Gilded Age is not hyperbole. It is the stated goal of the conservative movement. And they have enough judges on the Supreme Court and of course enough state legislatures and governors to see that increasingly ensconced into American law.

In other words, H.A. Goodman and Walker Bragman are totally right about the 2016 election and if the Democrats nominate Hillary, the nation would be better off with Ted Cruz.

One Person, One Vote

[ 79 ] December 14, 2015 |

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I am more than a little skeptical about the Supreme Court rejecting the openly racist arguments in Evenwel v. Abbott reinterpreting the definition of “one person, one vote” to exclude non-citizens, children, prisoners, and all people not eligible to vote, as if they aren’t affected by our government. Please don’t be shocked this challenge is coming out of Texas. This blatant Republican attempt to roll back the diversity they fear is just another step on their road to reestablishing a publicly white supremacist nation. Like most everything else, it looks like a vacillating Kennedy is the only hope and this will probably at least open the door to more challenges to representation for the many people Republicans don’t deem worthy of it.

I guess the biggest chance this gets held off is that if we throw out counting everyone for representation, what actually replaces it is unknown and that would open a huge can of worms. Do I think that these Republican judges will let that get in the way of their own political preferences? No, not really.

Labor Picketing

[ 19 ] June 24, 2015 |

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This opinion piece by Catherine Fisk and Edwin Chemerinsky is quite interesting. Did the Supreme Court accidentally set a precedent to eliminate bans on labor picketing?

Reed v. Town of Gilbert’s reasoning makes it clear that restrictions on labor picketing can no longer survive First Amendment scrutiny. Sections 8(b)(4) and 8(b)(7) of the National Labor Relations Act prohibit speech, including peaceful picketing, if a “labor organization” or its agents is the speaker and based on the message. Section 8(b)(7) prohibits picketing urging workers to join a union or employers to recognize one if the picketing lasts longer than “a reasonable time” not to exceed 30 days. Thus, the National Labor Relations Board’s enforcement arm sought to enjoin workers affiliated with Organization United for Respect at Walmart (OUR Walmart) from picketing with signs saying “Stand Up, Live Better,” “Walmart, respeta a los trabajadores” (Walmart, respect workers), and “Let Walmart Associates Speak Out.” And under 8(b)(7) fast food workers can picket outside restaurants with signs asking to be paid $15 an hour or that the city adopt a $15 minimum wage ordinance, but they cannot picket for more than a reasonable time urging workers to demand $15 and a union. Section 8(b)(4) prohibits picketing urging secondary boycotts, and thus prohibits members of a labor union from picketing at a retail store urging a boycott of the store because its low prices are the result of low wages paid by a subcontractor that produces goods sold in the store or that operates the warehouse whence the store’s goods are shipped. But a store employee would be allowed to picket to urge customers to shop at the store because of its low prices.

The 8(b)(4) and 8(b)(7) restrictions on picketing clearly violate the First Amendment as the Court interpreted it in Reed v. Town of Gilbert. They prohibit speech based on its content because they, as the Court explained, “single[] out specific subject matter for differential treatment.”

Therefore, the picketing restrictions in section 8(b)(4) and 8(b)(7) can be upheld only if they are narrowly tailored to serve a compelling governmental interest. In Reed v. Town of Gilbert, the Court assumed for the sake of argument that the government has a compelling interest in regulating aesthetics and traffic, but rejected the Town’s contention that the regulations were narrowly tailored to protect the Town’s aesthetic appeal or traffic flow because the law was under-inclusive – it allowed signs with some messages but not others. The government might argue that 8(b)(4) and 8(b)(7) serve the compelling interest of preventing unjustified work stoppages and consumer boycotts. Eliminating work stoppages and consumer boycotts is, in our view, not a compelling governmental interest. But even if it were, prohibiting picketing is both overbroad and under-inclusive. Any group other than a labor organization is free to urge a consumer boycott or that workers strike to demand higher wages, and even labor organizations are allowed to use leaflets (rather than picket signs) to urge boycotts or strikes. The picketing prohibitions are under-inclusive if the goal is to eliminate encouragement of boycotts and strikes. And 8(b)(4) and 8(b)(7) are over-inclusive to the extent that they prohibit peaceful advocacy rather than actually striking or boycotting.

I guess my views on this are like my usual belief about the Supreme Court–that the justices will create ways to enforce their own personal political preferences. This is quite the development and may create a path forward but it’s hard for me to believe that Clarence Thomas and Antonin Scalia care one whit for precedence when it might help a labor union.

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