On February 10-11, 2017, the Yale Federalist Society hosted a conference celebrating Justice Clarence Thomas’s twenty-five years of service on the Supreme Court. The conference featured panels exploring Justice Thomas’s jurisprudence on subjects including the administrative state, criminal law, equality under the law, and executive power.
After the District of Columbia’s handgun ban was struck down by the Supreme Court in D.C. v. Heller, and its ban on bearing arms was struck down by the District Court in Palmer v. D.C., the District responded by prohibiting all persons from bearing arms unless “the applicant has good reason to fear injury to his or her person or property or has any other proper reason for carrying a pistol.” D.C. Code Ann. § 22-4506(a)-(b).
A “good reason” “at a minimum require[s] a showing of a special need for self-protection distinguishable from the general community as supported by evidence of specific threats or previous attacks that demonstrate a special danger to the applicant's life.” § 7-2509.11(1)(A). Living or working in a high-crime area was not enough. D.C. Mun. Regs. tit. 24 § 2333.4.
Yesterday, the U.S. Supreme Court released its opinion, Matal v. Tam, previously known as Lee v. Tam, regarding viewpoint discrimination and the First Amendment. The name changed when Michelle Kwok Lee, the U.S. Patent & Trademark Office (“PTO”) director at the time of the original lawsuit and appeals, resigned and Secretary of Commerce Wilbur Ross appointed Joseph Matal as interim PTO director on June 7, 2017.
The heart of the case was whether the PTO could deny registration to those trademarks which it deems “may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” (emphasis added) under § 2 of the Lanham Act of 1946, 15 U.S.C. § 1052(a).,  The trademark in question was the name of a dance-rock band, “The Slants,” of which Mr. Simon Tam and his fellow band members, all Asian-Americans, belonged. In other words, did the Lanham Act authorize the PTO to make an offense-free “safe space” out of trademark applications? [Read More]
Today the Supreme Court released three more opinions. A summary follows:
(1) Perry v. Merit Systems Protection Bd.: By a vote of 7-2, the judgment of the U.S. Court of Appeals for the D.C. Circuit is reversed and the case remanded. Per Justice Ginsburg's opinion for the Court: "This case concerns the proper forum for judicial review when a federal employee complains of a serious adverse employment action taken against him, one falling within the compass of the Civil Service Reform Act of 1978 (CSRA).... In the CSRA, Congress created the Merit Systems Protection Board (MSPB or Board) to review certain serious personnel actions against federal employees. If an employee asserts rights under the CSRA only, MSPB decisions, all agree, are subject to judicial review exclusively in the Federal Circuit. §7703(b)(1). If the employee asserts no civil-service rights, invoking only federal antidiscrimination law, the proper forum for judicial review, again all agree, is a federal district court, see Kloeckner v. Solis, 568 U. S. 41, 46 (2012); the Federal Circuit, while empowered to review MSPB decisions on civil-service claims, §7703(b)(1)(A), lacks authority over claims arising under antidiscrimination laws, see §7703(c). When a complaint presents a mixed case, and the MSPB dismisses it, must the employee resort to the Federal Circuit for review of any civil-service issue, reserving claims under federal antidiscrimination law for discrete district court adjudication? If the MSPB dismisses a mixed case on the merits, the parties agree, review authority lies in district court, not in the Federal Circuit. In Kloeckner, 568 U. S., at 50, 56, we held, the proper review forum is also the district court when the MSPB dismisses a mixed case on procedural grounds, in Kloeckner itself, failure to meet a deadline for Board review set by the MSPB. We hold today that the review route remains the same when the MSPB types its dismissal of a mixed case as 'jurisdictional.' As in Kloeckner, we are mindful that review rights should be read not to protract proceedings, increase costs, and stymie employees, but to secure expeditious resolution of the claims employees present." [Read More]
Twice in the past five years the United States Supreme Court has questioned its holding in Abood v. Detroit Board of Education, 431 U.S. 209 (1977) (6-3 decision on this issue), that the First Amendment allows a government to force its employees to pay “agency fees” to a labor organization that is their “exclusive representative” for purposes of “collective bargaining” with the government. See Harris v. Quinn, 134 S. Ct. 2618, 2632-34 (2014); Knox v. SEIU, Local 1000, 132 S. Ct. 2277, 2289 (2012). Last term the Court agreed to revisit the issue in Friedrichs v. California Teachers Ass’n, and many legal observers of the oral argument in that case speculated that the Court would overrule Abood. However, the Court deadlocked 4 to 4 in Friedrichs due to the untimely death after oral argument of Justice Antonin Scalia. 136 S. Ct. 1083 (2016). On June 6, 2017, Attorneys from the National Right to Work Legal Defense Foundation and the Illinois Liberty Justice Center filed a petition for writ of certiorari with the Court for Mark Janus, a nonmember Illinois state employee, that presents the same question that Friedrichs presented: “should Abood be overruled and public-sector agency fee arrangements be declared unconstitutional under the First Amendment?” Janus v. American Fed’n of State, Cty, & Mun. Employees, Council 31, No. 16-1466 (U.S. docketed June 8, 2017). The case has already generated a lot of media attention.
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Raymond J. LaJeunesse, Jr. is Vice President & Legal Director at the National Right to Work Legal Defense Foundation, Inc.