Supreme Court Will Hear Major Free Speech Case Against Unions


ACRU Staff


September 29, 2017

This column by ACRU General Counsel Ken Klukowski was published September 28, 2017 by Breitbart.

WASHINGTON, D.C. — The Supreme Court on Thursday added 11 new cases to its docket for this year, including one that appears certain to be a major blow to public-sector unions.

As Breitbart News reported earlier this week, on Monday the justices held their annual pre-Term conference to consider all the petitions that have accumulated at the Court over the past three months while the Court has been in recess.

The Supreme Court has now released the names of at least some of the cases the justices will hear over the next seven months. Next Monday the Court may release more, along with the names of more than 1,000 petitions for a writ of certiorari (or “cert petitions”) that the Court will deny.

The biggest “cert grant” is Janus v. AFSCME. The issue in that case is whether forced union dues from public-sector unions to pay for political activity (almost always supporting liberal political candidates and priorities) violate the First Amendment.

The Court had held in its much-maligned 1977 case Abood v. Detroit Board of Education that the Constitution allows forcing union members to pay for political speech they disagree with. But in recent years the Court has changed course.

In late 2015, everyone expected Abood to be overruled in Friedrichs v. California Teachers Association. But Justice Antonin Scalia passed away before the decision was handed down, and the case was dismissed on a 4-4 tie vote. With Justice Neil Gorsuch now sitting in the seat formerly held by Justice Scalia, everyone is betting that Abood will not survive the current challenge.

The other cases granted review in this batch of orders of particular interest include:

  • Collins v. Virginia: Whether the Fourth Amendment permits an uninvited police officer who also does not have a search warrant to enter private property and search a car parked next to a house.
  • Byrd v. United States: Whether a driver in a rental car who is not listed as an authorized driver with the rental company still has a reasonable expectation of privacy preventing warrantless searches by the government under the Fourth Amendment.
  • Hays v. Vogt: Whether the Fifth Amendment right against self-incrimination is violated when incriminating statements are used at an initial probable-cause court hearing, even when those statements are excluded later during the full criminal trial.

Two other cases seem to raise significant issues, but the cert petitions are not currently available: McCoy v. Louisiana is a death-penalty case, and Rosales-Mireles v. United States involves aliens illegally re-entering this country.

Also on Monday, the Court removed Trump v. IRAP — the challenge to President Donald Trump’s travel ban in Executive Order 13780 — from its oral argument schedule pending further briefing, raising the possibility that the justices may decide the case is moot because the 90-day restriction period has expired.

With Thursday’s additions, the Court has now granted review in 39 cases for the upcoming annual term. Over the next four months, that total should climb to over 75.

It takes four votes to grant review in a case. Over 60 percent of the time the Court reverses, but there are many cases that the justices believe it is important to take anyway, so granting review should not be taken as a suggestion on the how the Court will rule on the merits. Conversely, denying review of a case is never construed as a reflection on the case’s legal merits.

The Court’s annual term — October Term 2017 — commences at 10 a.m. next Monday, October 2.



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