How Sandra Day O'Connor Disabled the ADA: Blinded by Textualism

(Photo Credit: Thomas Dolby, She Blinded Me with Science)

Two women with severe myopia were not considered for a pilot job by United Air Lines. They were pilots, however for United’s regional jet airline. They were merely applying for a better job. Their vision was correctable to 20/20 with glasses. Still, the airline refused to process their application because of their myopia.

In a far-reaching decision, Justice O’Connor (now afflicted with dementia) wrote that the women were not disabled. This is because their vision impairment was correctable to normal with glasses.

Justice John Paul Stevens put this ruling in perspective with a withering dissent:

“The Court’s approach would seem to allow an employer to refuse to hire every person who has epilepsy or diabetes that is controlled by medication, or every person who functions efficiently with a prosthetic limb."

How did Justice O’Connor conclude that people with correctable or controllable disabilities are not disabled? She used textualism: By reading closely the text of the ADA, which says that a person is disabled if he or she has a substantial impairment, she said that Congress used the “present indicative tense.” Thus, if a person wears glasses that corrects bad vision, or takes medication to control epilepsy, or walks with a prosthetic leg, or has normal hearing while using hearing aids, those people presently are not substantially impaired.

The lesson here is the blinding effect of textualism. Congress never debates legislation by pulling out dictionaries and having an interpretation duel between the Oxford English Dictionary and Merriam Online Dictionary. The clear intent of the ADA was to provide legal protection to people who have a substantial physical or mental impairment—and even then, employers are not required to hire them, but simply to consider a reasonable accommodation that would allow them to perform the essential functions of the job.

If the two applicants in the United case were okay to fly passengers from O’Hare to Champaign on a regional jet, why weren’t they okay to fly passengers on a jet from O’Hare to Orlando?

Congress passed a law in 2009 that overruled Justice O’Connor’s decision—and President Barack Obama signed it. This means if you are controlling a substantial impairment by taking medication or using therapy or assisting technology, the law gets you into the interview room with an employer, if you are otherwise qualified. That was—and is— the intent of the ADA, rather than a glorification of sentence diagramming put forth by Justice O’Connor.

Rare Day: UIUC Campus Honors & 4th Grade Class Study Japanese Internment Together

It’s not every day that a college class and fourth grade class have a common homework subject and meet in class together. But that’s what happened today when my class (“Immigration and Race: Inequality in Work”) and my wife’s class met in the Rare Book Room at the University of Illinois Library.

Our librarian retrieved fascinating materials from the UI library stacks and other collections. One show-stopper: Our library has a full folio of newspapers published by inmates at the Manzanar camp.

One student noticed great irony in the title of the newspaper: “Manzanar Free Press.” Click on the full page and think about these headlines: “Workers Line Up to Receive Pay.” Yes, these “workers” were paid pennies on the dollar for their work. “Citizens’ Group in First Meeting.”  Yes, these citizens were incarcerated simply and only because of their race … but they were able to hold a meeting behind barb wires. “Pears, Apples To Be Harvested Soon.” Click on that story and at the end read: “All residents are requested to resist temptation and not pick the fruits.” We learned that the food raised by inmates was sold to outside markets (white people).

The most surprising lesson for me? Military leaders opposed the internment idea! They told politicians that only about 500 Japanese Americans out of 117,000 were considered subversive—the rest were loyal. 
About 90,000 were citizens (the rest had an early version of a green card, meaning lawful resident). Lt. Gen. DeWitt privately expressed outrage that U.S. citizens could be rounded up and relocated simply because of their race. 
Three months later, he was charged with the task of making this happen.

The story made me reflect on the tense exchange last week between Chief of Staff  General John Kelly and National Security Adviser John Bolton. The military leader believes that the Army should not be used to patrol the U.S. border for migrants. Mr. Bolton favors this.

To Caroline Szylowicz (Rare Book Room Librarian), thank you a day that UIUC and Leal 4^th Grade students will not forget. 
The world they are inheriting from my generation is on course to revisit the bigotry, segregation, and racial pride that we had hoped was eradicated 70 years ago. 

To our students, we look to you for new hope, new ideas, courage, and compassion.

Employer Cites Religious Values to Fire Transgender Employee: Lawful?

No, said a recent federal appeals court—but President Trump’s apparent effort to broadly regulate transgender protections out of all federal laws could essentially negate the impact of this ruling. So could the newly formed conservative bloc of the Supreme Court.

In this recently decided case (EEOC v. R.G. & G.R. Funeral Homes), the employer fired Aimee Stephens (pictured) because she was transitioning from male to female. The employer said that employing Ms. Stephens violated his religious view that gender is biologically determined at birth.

The federal Sixth Circuit Court of Appeals sided with the EEOC, finding that Stephens was fired “because of … sex.” The words are in quotes because that’s exactly how Title VII—the statute— reads. The court said that if Stephens remained male, she would have avoided termination.

The most interesting part of the lengthy decision is the court’s treatment of the owner’s religious values. His funeral home was not for Christians only, though it had Jesus prayer cards. The business also conducted Jewish funerals. The court reasoned that the owner’s religious values (as expressed in business dealings) were fluid and indeterminate—it had a Christian focus, but not so exclusive as to close off business from atheists, Jews, and people of other faiths.

The court compared religious fluidity with gender fluidity. Its point was that religious belief is not always orthodox or rigid. Sometimes it’s a mixture of faiths; or no faith. Ditto for gender identity: some people are strictly male or female by birth and biological identity, but others—to use the religion analogy—seek to convert due to an “intensely personal decision.”

My students asked if the Supreme Court will review the case. The answer is maybe. Here is the latest:

05/11/2018 Docket Entry: APPLICATION (17A1267) TO EXTEND THE TIME TO FILE A PETITION FOR A WRIT OF CERTIORARI FROM JUNE 5, 2018 TO AUGUST 3, 2018, SUBMITTED TO JUSTICE KAGAN. …

09/18/2018 Docket Entry: THE MOTIONS TO EXTEND THE TIME TO FILE RESPONSES ARE GRANTED AND THE TIME IS FURTHER EXTENDED TO AND INCLUDING OCTOBER 24, 2018, FOR ALL RESPONDENTS.

So, we will have an answer soon. My guess is the Court will grant the cert petition (relying on four votes from conservative justices). Personally, I hope I am wrong—I believe the Sixth Circuit was correct.

President Trump Is Not Our First Racist, Anti-Immigrant President: Woodrow Wilson

As President Trump rallies his base, again, by vowing to place the military on the  U.S.-Mexico border, I share this brief immigration excerpt from my work-in-progress, “Delegating Racial Animus to Presidents: White Workers, Migrants, and Heightened Scrutiny.”

President Woodrow Wilson was a useful tool for Europhobes. As a scholar, he published a book that singled out the “sturdy stocks of North Europe” for contributing to America’s early success while disparaging “multitudes of men of the lowest class from the south of Italy and men of the meaner sort out of Hungary and Poland.” As a politician, he compared America’s breeding stock as the best of God’s creation. As a governor in 1912, he supported a eugenic sterilization bill.  Aligned with academic eugenicists, Wilson asserted that these undesirables had “neither skill nor energy nor any initiative of quick intelligence.”  To the future president, they were rubbish from low European nations who “were disburdening themselves of the more sordid and hapless elements of their population.”  In the oval office he fanned the fires against Europeans. 

Numerous presidents shared President Trump’s worldview of immigrants and blacks. My paper does not condemn them: I show that too much of our law has delegated the animus of white people—often voiced from unions— to Congress and on to the president. 
These policies are contrary to the Declaration of Independence, and constitutional guarantees of equal protection to “all persons”: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness.”

“The Muslim Ban Cases You Cite Are No Longer Good Law”: NYU Journal Is Wrong

Thus said my (former) editor at the NYU Journal of Law and Liberty yesterday. He is half right. He is half wrong, too. And being half-wrong makes him … wrong.

My research makes the case that a president cannot use immigration powers to exclude or remove foreign nationals based on race. The president’s “Hire American” executive order (No. 13,788) targets Asian Indians without saying so—but that is the effect. By the way, if the order is about hiring the best, why not label it “Hire the Best”?

So, why is my former editor half wrong? He assumes that the Trump v. Hawaii ruling from this past summer makes his case that President Trump has a free hand in implementing immigration executive orders.

He has forgotten Trump v. Hawaii, Part I, decided by the Supreme Court a year earlier in 2017. 
I re-checked that case today and the 2018 Trump case. They are different rulings based on different versions of the "travel ban." What makes the travel ban of 2018 constitutional is that it is limited to foreigners have had had no prior contact with, or in, the United States. The 2017 Trump case (it was actually his second ban but the first to go to the Supreme Court) is quoted here:

The courts below took account of the equities in fashioning interim relief, focusing specifically on the concrete burdens that would fall on Doe, Dr. Elshikh, and Hawaii if § 2(c) were enforced. They reasoned that § 2(c) would “directly affec[t]” Doe and Dr. Elshikh by delaying entry of their family members to the United States.

The Ninth Circuit concluded that § 2(c) would harm the State by preventing students from the designated nations who had been admitted to the University of Hawaii from entering this country. These hardships, the courts reasoned, were sufficiently weighty and immediate to outweigh the Government’s interest in enforcing § 2(c). Having adopted this view of the equities, the courts approved injunctions that covered not just respondents, but parties similarly situated to them—that is, people or entities in the United States who have relationships with foreign nationals abroad, and whose rights might be affected if those foreign nationals were excluded.

In practical terms, this means that § 2(c) may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.

Translation: Courts cannot stop the president from excluding aliens (Trump case, 2018). But if aliens are already lawfully in the U.S., an executive order can be enjoined by a court, if there is evidence of a constitutional violation (Trump case, 2017). 
The H-1B visas holders in my paper are both outside the U.S. (e.g., India) but also here in the U.S., lawfully (e.g., San Jose, California). Certainly, those resident aliens fall under the 2017 ruling by the Supreme Court, no less than Dr. Elshikh above. Yet they are targeted by the "Hire American" executive order at the time of renewing their work authorization.

Is There a Kavanaugh Effect in Academia? A Personal Account

The Kavanaugh confirmation hearings polarized America. It also energized conservatives and liberals. Have conservatives in academia been emboldened to silence or mute liberals?

The NYU Journal of Law and Liberty is a libertarian law review. Their point of view is that governments over-regulate, and violate basic human liberties. They favor freely operating markets, including labor markets.

The journal invited authors with differing viewpoints to write research articles on President Trump’s regulation of immigration via executive orders.

I wrote on the “Hire American” executive order. It seeks to bring “rigorous” enforcement to the H-1B visa program. This visa is for “specialty occupations”—typically, computer programmers. By law, 65,000 visas can be issued. Every year this allotment is filled in a few days.

President Trump’s executive order impairs this system by requiring petitions be granted only for the “highest paid or most qualified” people. I have emphasized the text to show that the real meaning of the order is to significantly draw down H-1B visas below the allowable limit. After all, 65,000 foreign workers cannot all be the highest paid or the most qualified. The impact for technology employers could be significant.

I make an argument—with census data, with visa data, and with the Trump administration’s harsh language about immigrants taking work from Americans— that the order is biased against Asian Indians, who comprise more than 50% of the H-1B visas and 70% of the technology labor market sector. The order seeks to displace Indian workers for white Americans.

I presented my paper in February with others at NYU—a normal experience. My paper underwent a lengthy and thorough substantive editing in August and September, where I made substantial revisions.

Today—on the eve of publication— the journal required me to make four significant changes, two of them major (below), and “offered” that if I don’t meet the new deadline, my article will be delayed (without any certain date of publication). I have withdrawn my article and will start over.

The journal’s main concern is my failure to discuss Trump v. Hawaii, the “travel ban” (Muslim ban) Supreme Court case, and the Trump administration’s removal of its press conference from the White House website.

Here is my brief reply:

The more germane question at this point is why you and your fellow editors are insisting on such extensive revisions on October 16, 2018 when you returned my paper to me for substantive edits during the Labor Day holiday weekend (and which I returned in early September) without raising this concern.

Trump v. Hawaii was decided on June 26, 2018. Why has it become such an important editorial matter today when you never flagged this as a concern in late August/early September?

I note, to your point, that the Trump ban upheld by the Supreme Court was not an executive order but Proclamation No. 9645, a third redraft of two earlier executive orders (and significantly more narrow) that were thoroughly discredited by judges across a broad ideological and geographical range.

If President Trump wants to revise and narrow the “Hire American” executive order two more times, as he did with the travel ban that the Supreme Court actually ruled on in June, then I will agree with you that my analysis is wide of the mark.

To your comment that “but the transcript is easily accessible from the error page by using the search bar to search for it. This undermines the section of your paper which suggests that the briefing was removed to conceal the discriminatory motive.”

This is an entirely unfair criticism of my paper. Essentially, you are saying that the motives for the order are transparent because, with enough internet skill and persistence, a person can work past the White House error page—which I verified on several occasions—and get to the “real” motive behind the executive order.

That type of executive branch transparency is more fitting for President Vladimir Putin, not a United States president who is pushing the boundaries of executive orders to new and untested limits.

In short, this has become your article, not my article—and your comments below evince more than skepticism of my analysis but an intent to eviscerate its primary thesis of racially discriminatory intent behind the executive order.

So what has changed, all of a sudden? I really don’t know … but I do wonder if this type of aggressive and retrogressive editorial policy (raising new issues late in the process, not earlier) is related to the right’s pushback over Justice Kavanaugh. In terms of timing, I cannot think of another reason.

Elect Democratic House … and See Kushner Tax Returns

Everyone reading this blog paid federal taxes this past year. In tonight’s NYT, new reporting suggests that Jared Kushner avoided paying federal taxes entirely from 2009-2016.

With that in mind, you might want to read Andy Grewal, “Can Congress Get President Trump’s Tax Returns?,” published in Yale Journal on Regulation on February 13, 2017.

Just click here: http://yalejreg.com/nc/can-congress-get-president-trumps-tax-returns/.

Here is a quote to give you a gist of the matter:

In a recent Washington Post article, Professor George Yin argues that Congress can force Trump to make his returns available for legislative review. Legislators have embraced similar arguments.... 

The statutory authority for any congressional requests would probably come from Sections 6103(f)(1) & (2) of the tax code. 
Under (f)(1), some committees of Congress can request disclosure of Trump’s returns and can examine those returns privately. 
Under (f)(2), a non-partisan career official, the Chief of Staff of the Joint Committee on Taxation (JCT), may also request and privately examine those returns. 
Professor Yin argues that information obtained through Section 6103(f) can be subsequently disclosed to the public, when public disclosure serves a legitimate legislative purpose.

….

That law review article was written before Saudi Arabia-- where Jared Kushner has invested personal funds-- emerged as a suspect in a chilling murder of a journalist.
Thus, a Section 6103 audit would not be a fishing expedition or a personal vendetta but would serve a legitimate public policy interest to see whether the Trump administration's handling of this human rights case is influenced by income that was not reported as taxable nor paid on as taxes (as the rest of us do), but rather, invested jointly with the royal Saudi family.  

Delegating Racial Animus to Presidents: White Workers, Migrants, and Heightened Scrutiny

Dear Blog Readers:

I invite you to read and comment critically on the following. It's the introduction to my next research paper. It's still months away from completion. In particular: How clear is this opening presentation? Is it persuasive, or unclear, or off-putting? Your feedback is welcome! Post to FB or email me at mhl@illinois.edu. I am interested in candor, not pats on the back. Thank you in advance.  Sincerely, Michael

Delegating Racial Animus to Presidents:

White Workers, Migrants, and Heightened Scrutiny

A president directs border agents to administer an English literacy test to workers with employment visas. Separately, in response to tensions with China, he orders border agents to deny entry to Chinese visa-holders in STEM-field jobs. In addition, based on recent data showing that the U.S. admitted nearly equal numbers of workers from the Dominican Republic (7,602) and Norway (7,502), he orders immigration officials to reduce admissions from the island nation to 100 persons on grounds that Caribbean islanders are inferior to northern Europeans.  These are not actions taken by President Donald Trump. These are— with minor alterations— U.S. immigration policies from the past. Federal courts upheld these immigration restrictions, looking past clear evidence of racial animus. Those decisions remain valid precedents.

Courts should not blindly follow these "plenary power" precedents when racial animus motivates presidential actions. Nonetheless, these cases treat a president’s power over immigration as unreviewable or entitled to extraordinary deference. This approach has drawn from the nature of executive power in Article II of the Constitution, common law traditions of monarchs as embodiments of sovereignty, delegation of powers from Congress, and the accumulation of precedent.

But such high deference can be taken to extremes— for example, by allowing the internment of more than 100,000 Japanese Americans and resident aliens in U.S. concentration camps; sentencing resident Chinese workers to hard labor without a habeas corpus court hearing because they could not produce a white witness to testify to their residency; and excluding an Indian Hindu simply because he was not a white person. Judicial deference has ignored the possibility that certain immigration policies and actions are official expressions of bigotry and white supremacy.

I do not make these charges lightly but point to the fact that eleven presidents used executive orders and treaty powers to segregate indigenous people on reservations, eight presidents owned slaves while in office, occasionally using their Article II powers to explore the deportation of these migrant laborers to Africa, two presidents published widely in the eugenics movement, with one openly writing on “race suicide” for whites in America, one president used his powers to deny citizenship rights, enacted by Congress, to former black slaves, another president used an executive order to forcibly relocate and detain an entire nationality group—and more recently, a president’s legitimacy was attacked because of the sinister immigration lie that he was born in Kenya.

Current immigration jurisprudence is indifferent, if not blind, to the idea that executive power over immigration mingles occasionally with racial animus. I contend that whether Congress delegates its racial animus in matters of immigration, or a president acts on his own racial animus, courts should apply heightened scrutiny to actions that detain, restrict, remove, exclude, criminally punish without a trial, or incarcerate immigrants en masse. I present exhaustive evidence that white workers, acting on their racially defined interests, were—and are again— the main source of animus underlying restrictive, exclusionary, and punitive immigration measures taken by presidents against migrants of color and racially impure whites. 

Union Dues and the Paranoia of an Anti-Union Group

The statewide teachers union for Pennsylvania has stopped collecting “fair share” dues (technically called fees) from teachers who don’t want to join a union. The union didn’t want to do this. They did it, however, because of the recently decided case from the Supreme Court, called Janus. 

(See dog above, who is illustrating how PSEA is treating non-paying teachers.)

The anti-union group known as Right to Work Foundation served the Pennsylvania State Education Association with a new lawsuit. Let’s listen in to the lawyer for Right-to-Work as he spoke to a federal court:

“In light of the Supreme Court’s ruling, it is critical that any authorization for public sector forced dues be permanently removed from state law, so unscrupulous union bosses cannot use unconstitutional provisions to attempt to deceive workers about their right not to fund a labor union,” said Mark Mix, the president of the National Right to Work Legal Defense Foundation.
Aha. Let's have a lawsuit to prevent an attempt of collecting dues (that has not happened nor has been planned or threatened to happen). 

Here is what the union told the court:

“There is no effective form of relief that can now be ordered. Any judgment in plaintiffs’ favor would amount to an advisory opinion holding what Janus has already established and ordering the defendants to do what they have already done.”

In other words, according to the union, the anti-union group has won—so there is nothing more to litigate here. 

Right to Work’s reply?

“The Supreme Court could not and did not strike down Pennsylvania law when it decided Janus because no one raised a justiciable challenge in Janus to Pennsylvania’s fair share fee statutes. The Supreme Court did not even discuss how Pennsylvania laws authorizing fair share fees might relate to the Illinois statute at issue in Janus. That is to say, Janus necessarily left Pennsylvania law intact.”

Well, winning is a problem when you achieve your ultimate goal. You run out of unions and states to sue. 
That won’t stop Right to Work. They’ll keep their anti-union lawyers busy suing teacher associations in all 50 states, long after unions are simply walking away from a bruising loss this summer.

Lessons for Our Divided Nation: Southern Employers of Free Blacks, Circa 1839

There were free blacks in the South before the Civil War. Typically, they won their freedom from masters who “manumitted” them, often in a will, and conferring freedom upon the master’s death. And until the KKK raged in 1866 and thereafter, many free blacks were employed side-by-side with whites.

This example would serve our nation well today—that people could look past the popular prejudices of their time, work together, and avoid making much noise about their affairs.

Today, my students are reading this account:

“In many places in the South, white mechanics and Negro mechanics worked side by side with little or no friction. A letter of H. Crowell to the editor of the Federal Union, Milledgeville, Ga,. dated March 18, 1836, speaks of a boat building establishment on the Flint River where there were ‘ten or fifteen white mechanics, and some twenty or more Negroes, working well.”

Buckingham in discussing a cotton mill at Athens, Ga. in 1839 says: ‘There is no difficulty among them on account of color, the white girls working in the same room and at the same loom with the black girls; and boys of each color, as well as men and women, working together without repugnance or objection…. The Negroes here are found to be quite as easily taught to perform the required duties of spinners and weavers as the whites.”

Source: W.E.B. DuBois, The Negro Artisan (1912). Prof. DuBois was a leading African American scholar in the early 1900s, who taught and researched at Atlanta University, a university for blacks created during the Jim Crow era of racial segregation.

ICE Block: California Law Turns Employers Into Sanctuaries

On Monday, my class on immigration and employment will work through this scenario. For those who are not in class, feel free to share your thoughts on FB or at mhl@illinois.edu.

Immigration Simulation

Under California’s AB 450 (2017) [AB stands for Assembly Bill], employers are prohibited from providing Immigration and Customs Enforcement (ICE) with access to nonpublic areas of the workplace and employment records when ICE has not obtained a warrant or subpoena.

AB 450 requires employers to notify workers when ICE plans to conduct an audit and inform workers about the details of the audit. Employers can be fined $2,000 to $5,000 for the first violation, and $5,000 to $10,000 for each additional violation.

In addition, employers are prohibited from requiring their existing employees to reverify their work authorization at a time or manner not required by federal immigration law, and may face penalties of up to $10,000 for each violation.

Suppose you are part of the HR leadership team at Amazon, which is the largest California employer of workers on an H-1B visa. Your group has read the “Hire American” Executive Order, calling for rigorous enforcement of your industry. See Section 2(b), at https://www.whitehouse.gov/presidential-actions/presidential-executive-order-buy-american-hire-american/.

Further suppose that ICE showed up recently at a research park office where you employ 150 H-1B visa workers. Amazon denied entry. ICE told your office manager they would return, and would gain access to your workplace and your records.

How far do you want to go to cooperate with ICE?

How far do you want to go to comply with AB 450?

Consider these elements (think short-term and long-range):

Physical hardening of your work site: Do you want to create a more secure perimeter at your parking lot (your “hard” security perimeter begins in your office lobby)? How much physical hardening do you want for your workplace?

Security: Do you want to hire perimeter security? Cost is not an issue, but it will create a different feel for your workplace. If you go this route, do you outsource security or in-source it? Do you arm your guards? Do you instruct them to use force for illegal entry? Do you have a hotline to the local police, and have a protocol with them for this situation?

Audits: How do you train HR representatives to handle conflict between President Trump’s ICE and California’s AB 450? Do you keep immigration records at your Bay-area worksite, where AB 450 offers protection but also exposes Amazon to physical inspection; or do you move the records to Seattle where ICE is not currently auditing your Bay-area offices but where they might go next (and AB 450 offers no protection)?

Potential Litigation: Some Silicon Valley employees are outspoken about excesses of liberal thought and policies. Potentially, Amazon might have an HR person who will provide access and handover records, in violation of AB 450, because they believe in the “Hire American” order.

Do you want to screen employees for their views on immigration? What question would you ask? How would justify these questions as more than “PC brainwashing” of employees? Are you willing to fire an employee who expresses allegiance to federal policy and hostility to AB 450? 

Housing: Currently, assume that you pay for long-term hotel accommodations at a Residence Inn near the workplace. You recognize that AB 450 would not apply to an ICE sweep at the hotel—ICE could show up a breakfast and start detaining your employees.

How much do you want to plan for this? Not at all? A little bit—perhaps by telling employees to not wear badges until they come to work? A bit more, by providing breakfast at your worksite? Do you want to go all-in and purchase or rent homes, and scatter employees in residential neighborhoods? If you take that route—and assuming that money is not an issue— do you locate your H-1B workers in white suburban neighborhoods? Urban condos where there is a diverse population?

Death of a Precedent: Should Justices Rethink Their Consensus Norms?

Will the addition of Justice Kavanaugh lead the Supreme Court to overrule precedents? As a nation, we are focused on this question to an unusual extent.

In 2014, I published a law review article that studied every precedent that the Supreme Court overruled. If you want to read “Death of a Precedent: Should Justices Rethink Their Consensus Norms?” click here and scroll down a bit, https://scholarlycommons.law.hofstra.edu/hlr/vol43/iss2/3/.

For now, here is a summary:

I found 205 paired cases of an overruling decision and the decision that was overruled. Point: The Supreme Court does not like to overrule itself. The rate is essentially one per year, though this fluctuates (click on picture, charts from my article, if you want details).

Looking at overruled precedents, more than half of them were only 20 years old, or less. They also tended to be fragmented rulings.

Let’s stop here: What precedents are less than 20 years old and have this fragmented pattern?

Obergefell v. Hodges is a 2015 case decided on a 5-4 vote. The 5–4 ruling requires all fifty states to perform and recognize the marriages of same-sex couples on the same terms and conditions as the marriages of opposite-sex couples, with all the accompanying rights and responsibilities.

National Federation of Independent Business v. Sebelius upheld “Obamacare” by a 5-4 vote in 2012.

Lawrence v. Texas was decided in 2003. The Court struck down the sodomy law in Texas in a 6–3 decision where a man was convicted for having anal sex in his residence with another man (a consensual act). Essentially, the six justices said that private consensual acts among adults are protected against state criminal laws.

Texas v. Johnson was decided in 1989. A man was criminally convicted for burning an American flag. By a 5-4 vote, the Court ruled that this flag burning was protected as free speech.

These cases have the characteristics of overruled precedents (the flag burning case is a bit out of range by age but I found plenty of cases like it).

What about Roe v. Wade? The case was decided in 1972— 46 years ago. The vote was 7-2.

This is not the type of case that is typically overruled.

That said, I found one case that overruled a 139 year-old precedent.

My study concluded: "There is something fundamentally wrong when -as I report here - half of the Court's overruled precedents survive twenty years or less. My findings show that the more an overruled precedent is fragmented, the shorter it lives….

Strong consensus does not immunize a precedent forever; however, it tends to extend a precedent's life. When Justices overrule a recent precedent decided by a large majority, they admit that they carry a heavy burden to justify their action."

My Syllabus—with Law School Colleagues— Has Been FOIAed: Bring It On

The Illinois Freedom of Information Act (FOIA) gives the public broad access to public documents. On Tuesday, someone made a formal request under FOIA for all course syllabi in Spring 2018 classes. My hunch is that someone is looking to troll law faculty, perhaps because of our academy’s open resistance to Judge Brett Kavanaugh.

Bring it on.

My law professor, Bill Murphy, was born and raised in Memphis, Tennessee but earned his law degree from Yale.

Prof. Murphy’s first job was at the University of Mississippi Law School. The school was officially segregated, and had not yet admitted a black student. Murphy was an outspoken critic of Jim Crow and the University of Mississippi.

Prof. Murphy got into serious trouble after he added Brown v. Board of Education to his constitutional law syllabus. Yes, that is the Supreme Court case that overruled the separate-but-equal doctrine in Plessy v. Ferguson.

He was pressured by his dean and university administrators to keep teaching Plessy. He refused. His defense? Brown v. Board of Education is the law of the land. And we will teach the law of the land here.

Politicians made a huge deal over this liberal professor. The state legislature passed an appropriation bill that withheld funds from the law school. Privately, they told Ole Miss officials that funding would be restored after Prof. Murphy’s employment ended.

Ole Miss’s loss was our gain at the University of North Carolina School of Law.

Thank you, Prof. Murphy.

At Illinois, our situation is incomparably better. But our times are falling back to the era of McCarthyism and Jim Crow. Take our syllabi. We will not bend to trolling or other pressure tactics. 

Overruling Roe v. Wade? Doctors, Nurses Face Criminal Convictions

On the surface, Roe v. Wade has nothing to do with employment. But it does. Prior to Roe v. Wade, many states criminalized abortions. Doctors who performed abortions (and assisting nurses) were convicted.

Consider State v. Brandenburg. In this 1948 case, a doctor and two “abettors”— nurses— performed an operation to remove a dead fetus from a woman’s womb.

The New Jersey statute read:

‘Any person who, maliciously or without lawful justification, with intent to cause or procure the miscarriage of a woman then pregnant with child, shall:

‘a. Administer to her, prescribe for her, or advise or direct her to take or swallow any poison, drug, medicine or noxious thing; or

‘b. Use any instrument or means whatever—— shall be guilty of a high misdemeanor.'

The defendants argued “lawful justification.”

The New Jersey Supreme Court rejected the defense, stating: “We find it unnecessary to consider whether under our statute and the construction thereof given by our courts threatened impairment of a woman's health, as distinguished from the saving of her life, constitutes lawful justification.”

Unless an abortion was necessary to save a woman’s life, work performed to aid an abortion was a crime.

The court overlooked this evidence:

“Dr. Brandenburg's clear testimony, much of it reiterated, that he did not cause or procure a miscarriage; that at the time of his physical examination prior to the operation the embryo or unformed foetus was dead and in process of being discharged by natural causes; that the cervix was soft and open and that the dead embryo was protruding therefrom; that on the dilating of the cervix for examination bleeding became ‘very, very, very copious,’ such as to present a pressing emergency and to make a delay of even a few hours inadvisable; wherefore the witness proceeded at once to administer an anesthetic, widen the opening of the cervix and remove all the ‘secunda’ (secundinae?), including the ‘miserated’ foetus and the afterbirth; that the operation was an emergency and was necessary in order to save the patient's life.”
The New Jersey Supreme Court upheld Dr. Brandenburg's conviction.

Overruling Roe v. Wade would have enormous consequences for women—and also health care professionals who provide services to women.

Supreme Hears Key Case on Mandatory Arbitration

Yesterday, the Supreme Court heard oral arguments in an important workplace case.

No one likes to be sued, including employers. More than 50% of all employees sign arbitration agreements. This means that they cannot sue their employer. Instead, they go to arbitration. This shifts costs to employees—often they pay for expenses they wouldn't see in court.

More important, it keeps workplace disputes private. Back to that point in a quick minute.

In prior cases, the Supreme Court ruled that employers could force employees into arbitration.

At issue is a clause in the Federal Arbitration Act, a matter on which I have published extensively.

The Act was passed as a business-to-business law. 

Consider a potato farm in Idaho shipping product to a grocer in New Jersey. Neither one wants a legal problem. Suppose the farm ships good potatoes but they arrive rotten in New Jersey. Neither wants to travel cross-country for a lawsuit. They can agree to take their dispute to arbitration—and fashion a system that is based on industry not legal norms.

The Supreme Court has misread the law as applying to most employment relationships, too.

Not so.

Section 1 of the Act exempts "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce."

That’s weird until you read the full congressional record. Unions representing merchant marine sailors and railroad workers showed up in 1924 to testify. They said, “Keep us out of arbitration—we want access to courts.” Congress said, “Fine. This is about businesses, anyway.”

The Supreme Court has ignored that history. 

The conservative majority takes a textualist approach—so, all employees except those in the red text above are not exempt, meaning that everyone except transportation workers can be required to arbitrate claims. 
The Court ignores the fact that nearly all the testimony was about business-to-business disputes and the high costs of litigating commercial disputes.

Now comes a truck driver who says he wasn’t paid a minimum wage. He has a lawsuit pending. 

The trucking company says, “Too bad. You signed an arbitration agreement.”

The truck driver is saying that he has a contract of employment in the transportation industry, therefore, he is exempt from arbitration (see red text above).

The company says, “This is not a 'contract of employment'.”

True—but only because the employer changed an employment relationship into an independent contractor relationship.

More broadly, this case is about a trend that has played out since the 1980s. Republican justices want to shield employers from liability in court. They want these disputes to be private, not public.

Closing thought: Why are wages stagnant when the economy is so strong? Many reasons. One is that when 50%+ of the workforce cannot sue to protect their rights, bad actors can get away with wage cheating… and discriminatory pay practices… and colluding with each other not to poach workers. Seriously, working people have been systematically cut out from the courts. That is not what Congress meant, ever.

Senate’s “Consent” = Woman’s Consent

How much does President Trump’s public mockery of Christine Blasey-Ford’s sworn testimony of being assaulted undermine the requirement of consent in sexual conduct? While you consider the question, this post draws attention to two types of consent posed by the Kavanaugh nomination—one political, one sexual.

The impending vote occurs under Article II, Section 2 of the U.S. Constitution: “[The President] shall have Power, by and with the Advice and Consent of the Senate, (to) appoint Judges of the Supreme Court….

Here is a legal definition of consent in the United States Code as a defense against rape and sexual assault as crimes:

(8)Consent.—

(A) The term “consent” means a freely given agreement to the conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue shall not constitute consent.

(B) A sleeping, unconscious, or incompetent person cannot consent. A person cannot consent to force causing or likely to cause death or grievous bodily harm or to being rendered unconscious. A person cannot consent while under threat or in fear….

(C) Lack of consent may be inferred based on the circumstances of the offense. All the surrounding circumstances are to be considered in determining whether a person gave consent, or whether a person did not resist or ceased to resist only because of another person’s actions.

Suppose the Senate votes to confirm Judge Kavanaugh. 
This wouldn’t repeal or modify the legal definition of consent. 
But the president’s public mockery of Ms. Ford, directing laughter and scorn at her, seems to have undermined the importance of consent as a requirement for sexual activity.

I would like to hear a senator connect the two usages of consent: When we give advice and consent, we mean in this particular case that no one who has been credibly accused of ignoring consent by covering another person’s mouth during an assault can serve on the Supreme Court. In other words, her consent is necessary for our consent.

Can Supreme Court Judges Be Forced to Recuse Themselves?

Photo Credit: Rory Murray O/C

Recusal occurs when a judge is removed from hearing a case. Almost always, the judge voluntarily recuses himself/herself. Justice Elena Kagan has recused herself several times because she worked for the Obama administration as their lawyer who took cases to the Supreme Court. For example, as recently as last year, she recused herself in an immigration detention case because she approved a court filing earlier in the process.

Can a judge be forced into recusal? Yes, but it’s extremely rare. 
The U.S. Supreme Court ruled that a West Virginia Supreme Court justice improperly remained on a case when he was asked to recuse himself. 
The justice in question received a $3 million direct election campaign donation from a business owner who had lost a $50 case in a trial. That justice cast the deciding vote that vacated the $50 million judgment. (That’s a nice return on a $3 million investment.)

The U.S. Supreme Court said that the plaintiff’s due process rights were violated. But its ruling is very narrow— recusal must happen only when “extreme facts” create a “probability of bias.”

Are we seeing “extreme facts” in the Kavanaugh case? Legally speaking, this is doubtful. 
First, the party seeking recusal must be able to show a direct injury. 
If Kavanaugh is confirmed and “Trump cases” come before the Court, he should follow Elena Kagan’s example. 
But there is no requirement. The Democratic Party or a particular U.S. citizen would not have standing to win a recusal motion. In other words, they are unlike the businessman who lost a $50 million judgment because someone paid to put a justice on the West Virginia Supreme Court.

What does this ultimately mean? Justice Kagan’s self-restraint— which most people don’t know about— has helped to maintain the public’s respect for the Supreme Court. If Justice Kavanaugh failed to recuse himself in similar situations, the Court’s rulings would be even more controversial—and the legitimacy of the Supreme Court would suffer.

What’s New About Arrest of Four Men in Charlottesville Riot?

Yesterday, the FBI announced the arrest of four men who took part in the Charlottesville "Unite the Right" march. They were arrested on federal counts of conspiracy to riot and rioting.

Boiling down the 24-page criminal complaint, here is what’s notable.

1. The FBI used the internet postings of the men and their hate group to develop the conspiracy element. The charge is that the four men—all from California—intended to cross state lines to riot, not “march.”

2. By prosecuting these men, the FBI is effectively taking on a shadowy hate group called RAM (see photo). RAM stands for “Rise Above Movement.” It is described as a “militant” variant of a white supremacy group.

3. The FBI used open source evidence—stuff you can find on the Internet.

4. RAM promotes a “clean” life style that emphasizes physical fitness with the objective of using male brute strength to commit violence against Jews, immigrants, blacks, and women (see violent head-butting of a female protester, top).

5. Some of the defendants were also caught on video at Berkeley committing violence against protesters there.

To read the complaint yourself, click here: https://www.documentcloud.org/documents/4952958-Charlottesville-Complaint.html#document/p1

Meet Supreme Court Justice Samuel Chase: Impeached in 1804

As topsy-turvy as our Supreme Court is today, we had a similar situation in the early 1800s (minus the charges of excessive drinking and sexual assault).

The Federalists had installed judges, including Supreme Court justices, who were proponents of a strong, national government. President Thomas Jefferson, much more of a states’ rights politician, entered office as a Democratic-Republican. 

The shift from John Adams to Thomas Jefferson was similar to Obama-to-Trump, even with respect to treatment of blacks (abolitionist to large slave owner).

Before leaving office, John Adams and allies in the Senate stuffed the courts with Federalists, some of whom were quite partisan. This included Samuel Chase, a distinguished politician but like Brett Kavanaugh, a man with many political enemies.

Jefferson and his party repealed the federal judiciary act—the idea being to remove every federalist judge below the Supreme Court who had a lifetime appointment! They passed a new judiciary act and tried to restock the court with their partisans!

Chase, two years after the repeal in May 1803, stated that Jeffersonian Republicans would “take away all security for property and personal liberty, and our Republican constitution will sink into a mobocracy.”

Jefferson urged his allies to reduce the Federalist influence on the judiciary by impeaching and removing Chase.

The House of Representatives served Chase with eight articles of impeachment in late 1803. The charges were specific but had the theme of improper partisan influence in his rulings—basically, an unfair justice.

One charge focused on his judicial demeanor, alleging that he was “intemperate and inflammatory … peculiarly indecent and unbecoming … highly unwarrantable … highly indecent" in his public remarks.

The House voted on March 12, 1804, 73 to 32, to impeach Chase.

The Senate was controlled by the Jeffersonian Republicans.

The strongest allegation was that political bias caused Chase to treat defendants in a blatantly unfair manner.

Chase's defense lawyers argued that all of his actions had been motivated by adherence to precedent, judicial duty to restrain advocates from improper statements of law, and considerations of judicial efficiency.

The Senate voted to acquit Chase of all charges on March 1, 1805.

Under the evolving circumstances, if Judge Kavanaugh is confirmed and seated on the Supreme Court, this precedent will not be lost on Democratic lawyers.

What they would do with this precedent is not clear (a two-thirds vote is necessary to convict on an impeachment charge), however, there are enough parallels to suggest that the seating of Justice Kavanaugh could simply be a prelude to a larger constitutional crisis.