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a blog by Ann Althouse

"Drivers reported for work and those with early runs had their trucks loaded with cement. At the appointed hour for the onset of the strike..."

"... the drivers drove their trucks back to the company’s headquarters and walked off the job. For those whose trucks had already been loaded with cement but who had not yet made deliveries, they left their trucks running so the cement wouldn’t instantly harden inside the trucks’ drums. The company, however, was unable to deliver the cement and some of it hardened, requiring it be destroyed and carted away. The strike lasted one week before the parties reached agreement on a new contract."

From "Cement-truck drivers went on strike/A lawsuit by their company may pave the way for restricting workers’ rights," the SCOTUSblog write-up of Glacier Northwest v. International Brotherhood of Teamsters, Local Union 174. Oral argument is this morning.

Glacier sued the Teamsters Union, which represents the drivers, for “tortious destruction” of the company’s property.... The Washington Supreme Court dismissed the case, finding that it wasn’t appropriate to apply state tort law to a labor dispute covered by a federal law, the National Labor Relations Act....

In San Diego Building Trades v. Garmon, the Supreme Court interpreted this preemptive effect broadly, holding that the NLRA precludes application of conflicting or even arguably conflicting state law in order to ensure that labor law applies uniformly to all workers, unions, and employers across the country.

The court has recognized only a narrow exception to the preemption doctrine. Specifically, the court has allowed application of state tort law only for torts “so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.”

Glacier argues that "intentional property destruction" — sabotage — is a matter of "local feeling."

There's also an argument that if federal law does preempt state law, it's a taking within the meaning of the Fifth Amendment and the federal government owes just compensation. That's a constitutional question that can be avoided by interpreting the federal statute not to preempt the state law claim.

There is more complexity, explained at the link, but the bottom line, per SCOTUSblog, is:

The Supreme Court has long recognized how central the right to strike is in protecting workers’ bargaining power. If employers have more leeway to argue that a strike has caused economic damage for which the union can be held liable, that right will be weakened.

"Should Justices Sonia Sotomayor and Elena Kagan, 68 and 62, respectively, do what Ginsburg would not?"

Asks Ian Millhiser in "Sotomayor and Kagan need to think about retiring/The US Senate is a fundamentally broken institution. Democratic judges need to account for that in their retirement decisions" (Vox). 

Is this a ludicrous suggestion? Millhiser has no news of ill health from either Justice (though "Sotomayor has diabetes"). His main worry seems to be that the Democrats are going to lose power — and for a long time. But at least they have the Senate and the presidency for these next 2 years. They could slot in 2 reliable liberal Justices — young Justices, 20 years younger than Sotomayor and Kagan. So give them the chance to do it while they can. That's my paraphrase of Millhiser's position. 

Millhiser has a dark view of the Democrats' chance in 2024:

The 2024 Senate map is so brutal for Democrats that they would likely need to win a landslide in the national popular vote just to break even. Unless they stanch the damage then, some forecasts suggest that Democrats won’t have a realistic shot at a Senate majority until 2030 or 2032. And even those forecasts may be too optimistic for Democrats.

If Sotomayor and Kagan do not retire within the next two years, in other words, they could doom the entire country to live under a 7–2 or even an 8–1 Court controlled by an increasingly radicalized Republican Party’s appointees....

Millhiser concedes that there's a problem in having one side of the Court composed entirely of newcomers:

Long-serving justices can develop cult followings.... And justices who serve for a very long time also develop relationships with their colleagues that they can sometimes use to encourage those colleagues to moderate. If only Republican justices can benefit from longevity, the Court’s right flank will gain yet another structural advantage over its left....

[Clarence] Thomas’s tremendous influence on the conservative legal movement’s ambitions were [sic] not apparent until his third decade on the Court. It takes time to build a movement out of the handful of law students in every constitutional law class who read Thomas’s opinions and said to themselves, “Why not?” This kind of sustained movement-building around a central leader simply is not possible if that leader has to quit their job right when they are starting to master it.

Millhiser muses that perhaps Sotomayor or Kagan — with enough time — would, like Thomas, emerge as "a visionary." (Millhiser doesn't use the word "visionary" on Thomas, but he is saying that Sotomayor/Kagan would be a "visionary" if they followed the same narrative arc.) But in the end, that's not enough, and he wants them out before what he fears is the Democrats's coming 10-year eclipse in the Senate.

"[Lorie] Smith... sat near a plaque that echoed a Bible verse: 'I am God’s masterpiece.' She said she was happy to create graphics and websites..."

"... for anyone, including L.G.B.T.Q. people. But her Christian faith, she said, did not allow her to create messages celebrating same-sex marriages. 'When I chose to start my own business as an artist to create custom expression,' she said, 'I did not surrender my First Amendment rights.' Phil Weiser, Colorado’s attorney general, countered that there is no constitutional right to discriminate. 'Once you open up your doors to the public, you have to serve everybody,' he said. 'You can’t turn people away based on who they are.'"

Writes Adam Liptak in "A New Clash Between Faith and Gay Rights Arrives at a Changed Supreme Court A Colorado graphic designer says she has a First Amendment right to refuse to create websites for same-sex weddings despite a state anti-discrimination law." (NYT).

The oral argument is today.

If you're trying to remember why this is still a live issue after the wedding-cake case:

The court decided Masterpiece Cakeshop on an idiosyncratic ground that is not at issue in the new case, 303 Creative v. Elenis, No. 21-476. Justice Kennedy, writing for the majority in 2018, said [cake decorator Jack] Phillips had been treated unfairly by members of a civil rights commission who had made comments hostile to religion....

The hostility to religion made it easy to resolve under Free Exercise clause doctrine, but Phillips also raised a Free Speech argument. So did Lorie Smith, and, in her case, the Supreme Court granted review only on the Free Speech issue: "whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment."

In the Masterpiece Cakeshop case, Professor [Dale] Carpenter filed a brief supporting the gay couple along with Eugene Volokh of the University of California, Los Angeles. But in the new case, they took Ms. Smith’s side. Professor Carpenter did so, he explained in an interview, in part because he has devoted his career to the cause of advancing gay rights.

“It seems to me that the freedom of speech has been essential to the cause of L.G.B.T. rights,” he said. “It could not have advanced without the freedoms that are secured by the First Amendment. I take these things to go hand in hand.”

Mr. Phillips’s cakes did not deserve First Amendment protection, Professor Carpenter added, but Ms. Smith’s graphics and websites do. “Cake making is neither an inherently expressive nor a traditionally expressive medium,” Professor Carpenter said. “People make cakes for taste or nutrition.”

Ugh! Phillips was a cake decorator. The designs in the icing on the outside of the cake require artistic skill and choice. It's not about the cake baking. There are distinctions between wedding cakes and websites, but it's disingenuous to say a wedding cake is made "for taste or nutrition." It's made for the way it looks and what meaning those looks convey.

"The Supreme Court will hear oral argument on Tuesday in a dispute over the Biden administration’s authority to set immigration policy."

Writes Amy Howe, at SCOTUSblog. 

[T]here are over 11 million noncitizens currently in the United States who could be subject to deportation, but that the Department of Homeland Security does not have the resources to apprehend and deport all of them.... Texas and Louisiana went to federal court in Texas to challenge the Biden administration’s policy, arguing that federal law requires the government to detain and deport many more noncitizens than those identified by [Secretary of Homeland Security] Mayorkas as high prioriti[ies]....

The district court vacated the policy, and the Supreme Court agreed to take the case without waiting for the Court of Appeals.

The justices directed the Biden administration and the states to address three specific questions. The first is whether the states have... standing.... Texas and Louisiana insist that ... the policy inflicts “real, particularized, and concrete harms” on them.... by increasing... the costs to the states for everything from health care and education to incarceration.

The second question in the case is whether the policy is consistent with federal immigration law and the federal law governing administrative agencies.... The [statute's] use of “shall” means that these provisions are mandatory, the states argue, but Mayorkas’ memo makes them discretionary by allowing immigration officials to make a case-by-case decision about whether to detain a noncitizen....

The third question in the case is whether [the district court] had the power to set aside the policy. The Biden administration points to a provision of federal immigration law providing that, as a general rule, only the Supreme Court can “enjoin or restrain the operation” of immigration law....

The most obvious law school hypothetical when teaching the Good News Club case has come to life with the After School Satan Club.

I'm reading "Parents slam school’s ‘sick’ Satan Club for children as young as 5: ‘Disgusting’" (NY Post).

I got there via Sarah Hoyt at Instapundit:

WHOSE CHILDREN DO THOSE PARENTS THINK THOSE KIDS ARE? Parents slam school’s ‘sick’ Satan Club for children as young as 5: ‘Disgusting’.

Sorry, but this is exactly what was bargained for when by anyone who supported the after-school Christian club, approved of by the Supreme Court back in 2001.

Either you have a special rule excluding religion or you don't. In Good News Club, a Christian after-school club had been excluded and the Supreme Court saw that as discrimination against religion. Once you get that far, you can't have viewpoint discrimination. Viewpoint discrimination is worse than discrimination against religion in general. So there now you can't exclude the Satanist club.

I used to teach a Religion & the Constitution course, and I was teaching it when the Good News Club case came out. The first hypothetical that springs to mind is an After School Satan Club. Legal decisions have consequences, and sometimes they are perfectly obvious.


You think that's disgusting? Some people think all after-school religion clubs are disgusting, but they lost in the Supreme Court in 2001. And some people think government viewpoint discrimination is disgusting? Get your values in order and try to be consistent.

The Satan image is very well conceived to appeal to little kids who've been primed by children's books and cartoons. Don't you want to know what the li'l devil has to say?

Well, let's read the official web page for the group. Excerpt:

Proselytization is not our goal, and we’re not interested in converting children to Satanism. After School Satan Clubs will focus on free inquiry and rationalism, the scientific basis for which we know what we know about the world around us.

We prefer to give children an appreciation of the natural wonders surrounding them, not a fear of everlasting other-worldly horrors.

Well, hell!

More, from the handbook:

To call our club any alternative such as “science club” or “atheist club”, which has been suggested by many, would be disingenuous and akin to hiding. 

Satan, to us, is not a supernatural being. Instead, Satan is a literary figure that represents a metaphorical construct of rejecting tyranny over the human mind and spirit.

I know what you're thinking — That's just what the real Satan would say. He's such a clever deceiver.

But I say: If your Satan is so clever, how do you know he's not behind the Good News Club?

BONUS: My last point is reinforced by the #2 TV Devil on this list — Ned Flanders ("It's always the one you least expect"):

"Justice Samuel A. Alito Jr. denied an allegation from a former antiabortion activist that Alito or his wife disclosed to conservative donors the outcome of a pending 2014 case..."

"... regarding contraceptives and religious rights. The New York Times reported Saturday that Rob Schenck, who on his website identifies himself as a 'once-right-wing religious leader but now dissenting evangelical voice,' said he was told the outcome of the case, Hobby Lobby v. Burwell, several weeks before it was announced. Schenck said a conservative donor to his organization relayed the information after a dinner with Alito, who wrote the majority opinion in the case, and the justice’s wife. But the donor, Gayle Wright, told the Times and affirmed in an interview Saturday that the account given by Schenck was not true, and Alito issued a statement denying it as well."

WaPo reports.

Whatever the truth is about whether Schenck really heard what he says he heard from Wright and whether Wright is accurately telling us now what she got from Alito and what she relayed to Schenck at the time — and it's easy to imagine that all 3 are kinda-sorta telling the truth! — I'd just like to say that there's a big difference between leaking the draft opinion — as was done with Dobbs — and revealing the outcome of a pending case.

With the leak of the draft opinion in Dobbs, we saw the text and we saw it before the opinion was released. With this report that the outcome was revealed in advance in Hobby Lobby, we're hearing about it after the fact and second hand. 

And I wonder if there have been other times when leaks like this one — assuming it happened — have occurred. Where there is no published draft opinion to show the leak to us all, there needs to be not only a leak, but a leak to someone with a motivation to talk about it. 

Control of the Senate will not depend on the Georgia runoff.

The Nevada race has gone to the Democrat.

That's a relief. It's good to be emerging from this period of uncertainty about the balance of power.

If the Republican had won in Nevada, we'd have a repeat of 2020, spending weeks obsessed with Georgia, dependent on Georgia.

I see that Georgia has moved up the date of the runoff election, so it is the first week of December now. After the 2020 election, the runoff was in January. That's better, but it's also much better to not have control of the Senate depend on a runoff in one state.

The Democrats are massively constrained after the 2022 election, if, as it seems, Republicans do take control of the House. It's unlikely that there will be another Supreme Court opening before 2024, and if there is, the Supreme Court will only be put into more of a balance — 5-4 instead of 6-3.

"By the end of five hours of vigorous and sometimes testy arguments, a majority of the justices appeared ready to reconsider decades of precedents and to rule that the programs were unlawful."

 Writes Adam Liptack in the NYT.

ADDED: You can read the transcripts for the 2 cases here (University of North Carolina) and here (Harvard).

AND: From Robert Barnes and Ann E. Marimow in The Washington Post: "Conservative Supreme Court justices on Monday seemed open to ending decades of precedent allowing race-conscious admission decisions at colleges and universities, repeatedly expressing doubt that the institutions would ever concede an 'endpoint' in their use of race to build diverse student bodies." 

"Justice Kagan wondered if the Warhol case benefited from a 'certain kind of hindsight,' since 'now we know who Andy Warhol was and what he was doing and what his works have been taken to mean'...."

"At the same time, other Justices seemed more comfortable interpreting Warhol’s works. Justice Sotomayor took it for granted that Warhol’s works commented on Prince’s 'superstar status' and 'his consumer sort of life.' The idea that Warhol’s art depicted the flattening of celebrity was repeated so many times over the course of the morning that it flattened out, too. Justice Kagan recognized that Warhol 'took a bunch of photographs and he made them mean something completely different.' Even Chief Justice Roberts repeated, rather uncritically, the foundation’s view that Warhol sent a 'message about the depersonalization of modern culture and celebrity status and the iconic' and showed 'a particular perspective on the Pop era.'"

From "Controversy/In a case litigating Andy Warhol’s use of a photograph of Prince, the Supreme Court wades into the uncomfortable territory where art criticism and copyright law collide" by Liza Batkin (NYRB).

"These comments suggest that at least some of the Justices may reject the lower court’s decision against Warhol, which was based on the idea that judges couldn’t, or shouldn’t, make judgments on art. But they also expose an irony at the heart of this case. A win for Warhol would protect an artistic tradition dedicated to exposing the artifice of authorship and the slipperiness, or absence, of meaning. 'If you want to know all about Andy Warhol,' the artist once said, 'just look at the surface of my paintings and films and me, and there I am. There’s nothing behind it.' Warhol also said that his art was 'junk' and that he liked repetition because 'the more you look at the same exact thing, the more the meaning goes away and the better and emptier you feel.' But to prove that his prints say something different than the Goldsmith pictures, Warhol’s foundation has distilled from them a single, settled, unsubtle message about celebrity and consumerism."

I wonder what percentage of New York Review of Books readers will recognize the article title — "Controversy" — as the title of a Prince album? 


By the way, it's interesting to run across "Ronnie, Talk to Russia" — 40 years after Prince sang it. "Ronnie talk to Russia before its too late/Before they blow up the world/Don't you blow up my world."

The most obvious law school hypothetical when teaching the Good News Club case has come to life with the After School Satan Club.Listening to the oral argument in the Supreme Court's affirmative action case.

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