SCOTUS OK's arbitration opt-out from NLRA

Neil Gorsuch and Ruth Bader Ginsburg Clash Over Federal Labor Law and the 'Specter' of Lochner v. New York - Hit & Run : Reason.com - Damon Root:

May 21, 2018 - "'Should employees and employers be allowed to agree that any disputes between them will resolve through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers?'

"That's how Supreme Court Justice Neil Gorsuch summarized the dispute at the heart of today's 5-4 ruling in Epic Systems Corporation v. Lewis. Writing for a sharply divided Court, Gorsuch held that employees and employers have the legal right to make employment contracts that include one-on-one arbitration ... joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito....

"Under the Federal Arbitration Act of 1925 (FAA), arbitration agreements made between employers and employees 'shall be valid, irrevocable, and enforceable' by the courts. Under the National Labor Relations Act of 1935 (NLRA), employees have the right to form and join labor unions and 'to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.' In other words, if a labor contract that includes an individual arbitration agreement is valid under the FAA, does it become invalid when the NLRA is factored in?

"Justice Gorsuch thought not. 'In the Federal Arbitration Act, Congress has instructed federal courts to enforce arbitration agreements according to their terms — including terms providing for individualized proceedings,' he wrote. 'Nor can we agree with the employees' suggestion that the [NLRB] offers a conflicting command. It is this Court's duty to interpret Congress's statutes as a harmonious whole rather than at war with one another.'

"Writing in dissent, Justice Ruth Bader Ginsburg, joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, offered a very different view. 'Enacted later in time, the NLRA should qualify as "an implied repeal" of the FAA, to the extent of any genuine conflict'....

"Ginsburg then accused Gorsuch of seeking to resurrect the Supreme Court's pre-New Deal 'Lochner-era contractual "liberty" decisions.' Lochner refers to Lochner v. New York, the 1905 Supreme Court ruling which invalidated a state economic regulation on the grounds that it served no legitimate public health or safety purpose.....

"In his majority opinion, Gorsuch responded directly to this critique. According to Ginsburg's dissent, he observed, 'today's decision ushers us back to the Lochner era when this Court regularly overrode legislative judgments.' Yet as Gorsuch retorted, 'instead of overriding Congress's policy judgments, today's decision seeks to honor them. This much the dissent surely knows.'"

Read more: https://reason.com/blog/2018/05/21/neil-gorsuch-and-ruth-bader-ginsburg-cla
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Don Willett nominated to U.S. Appellate Court

Trump Nominates Libertarian-Minded Texas Justice Don Willett to U.S. Appellate Court - Hit & Run : Reason.com - Damon Root:

September 28, 2017 - "President Donald Trump will nominate [Texas Supreme Court Justice Don] Willett to fill one of two vacancies on the U.S. Court of Appeals for the 5th Circuit, the federal appellate court whose jurisdiction covers federal districts in Louisiana, Mississippi, and Texas.

"Willett, who appeared on Trump's 2016 list of potential U.S. Supreme Court candidates, is a rising star in conservative and libertarian legal circles and a popular presence on Twitter. If he is successfully confirmed to the 5th Circuit, Willett would immediately rank as one of the most libertarian federal judges in the country.

"Willett is best-known for his aggressive judicial stance in favor of individual rights and economic liberty. In the 2015 case of Patel v. Texas Department of Licensing and Regulation, for example, Willett lambasted state officials for requiring eyebrow threaders to obtain a costly government license before engaging in the harmless act of threading cotton string through customers' eyebrows in order to remove old hair and skin.

"This case is fundamentally about the American Dream and the unalienable human right to pursue happiness without curtsying to government on bended knee,' he wrote. 'It is about whether government can connive with rent-seeking factions to ration liberty unrestrained, and whether judges must submissively uphold even the most risible encroachments.'

"In Willett's view, both the U.S. Constitution and its Texas counterpart contain judicially enforceable protections for 'the right to earn a living free from unreasonable government intrusion.' In the interests of full disclosure, I should also note that Willett's Patel opinion favorably cites my 2014 book Overruled: The Long War for Control of the U.S. Supreme Court.

"Willett has been equally outspoken when it comes to government malfeasance in the criminal justice realm. When the Texas Supreme Court refused to hear the 2014 asset forfeiture case Zaher El-Ali v. Texas, for instance, Willett filed a sharp and memorable dissent. 'Does our Constitution have anything to say about a "presumed guilty" proceeding in which citizens are not arrested or tried, much less convicted, but are nonetheless punished, losing everything they've worked for?' he complained."

Read more: http://reason.com/blog/2017/09/28/trump-nominates-libertarian-minded-texas
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Appeals court approves concealed-carry in DC

In Major Win for 2nd Amendment Advocates, Federal Court Blocks D.C. from Enforcing Conceal-Carry Restriction - Hit & Run : Reason.com - Damon Root:

July 25, 2017 - "Second Amendment advocates scored a significant legal victory today when the U.S. Court of Appeals for the District of Columbia Circuit blocked Washington, D.C., from enforcing a law that effectively bars most D.C. residents from lawfully carrying handguns in public. 'The Second Amendment,' the court declared, 'erects some absolute barriers that no gun law may breach.'

"At issue was a District of Columbia regulation that limited conceal-carry licenses only to those individuals who can demonstrate, to the satisfaction of the chief of police, that they have a "good reason" to carry a handgun in public. According to the District, applicants for a conceal-carry license must show 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.' Living or working 'in a high crime area shall not by itself establish a good reason'....

"'At the Second Amendment's core lies the right of responsible citizens to carry firearms for personal self-defense beyond the home, subject to longstanding restrictions,' the D.C. Circuit held.... 'The Amendment's core at a minimum shields the typically situated citizen's ability to carry common arms generally. The District's good-reason law is necessarily a total ban on exercises of that constitutional right for most D.C. residents. That's enough to sink this law under' District of Columbia v. Heller, the 2008 case that struck down D.C.'s total ban on handguns.

"Today's decision by the D.C. Circuit widens an already gaping split among the federal courts on this issue. According to the U.S. Court of Appeals for the 9th Circuit, 'the Second Amendment does not protect in any degree the right to carry concealed firearms in public.' By contrast, the U.S. Court of Appeals for the 7th Circuit says that 'one doesn't need to be a historian to realize that a right to keep and bear arms in the eighteenth century could not rationally have been limited to the home.'

"In Heller, the U.S. Supreme Court did not rule definitively on the scope of the Second Amendment outside the home. In the nine years since that landmark ruling was issued, the Court has declined several ripe opportunities to settle the matter once and for all."

Read more: http://reason.com/blog/2017/07/25/in-major-win-for-2nd-amendment-advocates
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SCOTUS declines CA concealed-carry case

Clarence Thomas and Neil Gorsuch Blast SCOTUS for Refusing to Hear Major Second Amendment Case - Hit & Run : Reason.com - Damon Root:

June 26, 2017 - "Today the U.S. Supreme Court declined to hear a major case out of California that asked whether the Second Amendment right to keep and bear arms includes the right to carry firearms in public. By refusing to get involved, the Court left in place a ruling by the U.S. Court of Appeals for the 9th Circuit that denied constitutional recognition to the right to carry.

"Writing in dissent, Justice Clarence Thomas, joined by Justice Neil Gorsuch, blasted the Court for its failure to act and for its 'distressing trend' of treating 'the Second Amendment as a disfavored right'....

"Thomas offered a sharply worded case for why the Court should have taken up the question. Federal circuits, he pointed out, have reached different conclusions and are therefore irrevocably split on this pressing constitutional matter. 'This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion' ... Thomas observed....

"Today's case, known as Peruta v. California, centered on a state law that says that conceal-carry permits will only be issued to those persons who have demonstrated to the satisfaction of their local county sheriff that they have a 'good cause' for carrying a concealed firearm in public.... In the words of one San Diego official, 'one's personal safety is not considered good cause' in and of itself.

"What this means in practice, as one earlier court ruling observed, is that 'in California the only way that the typical responsible, law-abiding citizen can carry a weapon in public for the lawful purpose of self-defense is with a concealed-carry permit. And, in San Diego County, that option has been taken off the table.'"

Read more: http://reason.com/blog/2017/06/26/clarence-thomas-neil-gorsuch-second-amen
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The Slants win First Amendment suit (band video)

In Major Free Speech Victory, SCOTUS Rules for 'The Slants' and Strikes Down Federal Trademark Restriction - Hit & Run : Reason.com - Damon Root:

June 19, 2017 - "Today the U.S. Supreme Court ruled 8-0 in favor of the Asian-American dance-rock band The Slants, holding that the First Amendment protects the rights of the band's members to register a trademark in their band's 'offensive' name.

"At issue in Matal v. Tam was a federal law prohibiting the registration of any trademark that may 'disparage...or bring...into contemp[t] or disrepute' any 'persons, living or dead.' The Patent and Trademark Office cited this provision in 2011 when it refused to register a trademark in the name of The Slants, thereby denying the band the same protections that federal law extends to countless other musical acts. Justice Samuel Alito led the Court in striking down the censorious rule. 'We now hold that this provision violates the Free Speech Clause of the First Amendment,' Alito wrote. 'It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend'....

"Slants bassist Simon Tam told Reason.tv's Meredith Bragg, 'For me, this whole fight has not been just about the band name and our right to access the trademark registration.... When I found out what the government was doing and how they were doing it, how they were using it to suppress speech and how they were trying to take rights away from my own community, I decided that was not right. So all of a sudden it became about principle. When I believe they are violating the values of our country and violating my own values, I decided that had to be stopped, no matter the cost.'"

Read more: https://reason.com/blog/2017/06/19/in-major-free-speech-victory-scotus-rule
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Gary Johnson's SCOTUS picks 'best of them all'

Best Supreme Court Shortlist Of Them All: Gary Johnson’s | Above the Law - David Lat:

November 2, 2016 - "I’m a fan of the Supreme Court shortlist just released by libertarian president candidate Gary Johnson (and not just because I have some right-of-center tendencies). Say what you will about these folks, but at least they’re interesting.... All six figures on this list are brilliant and well credentialed....

"Ninth Circuit Court of Appeals Judge Alex Kozinski ... needs no introduction to regular readers of Above the Law.... Damon Root of Reason offers a good summary of his appeal, noting the judge’s 'principled defenses of the First Amendment, the Second Amendment, limited federal powers, and the due process rights of criminal defendants.' And let’s not forget his TV and movie career....

"Randy Barnett: The Georgetown law professor is most famous for his libertarian legal advocacy, including the medical marijuana case of Gonzalez v. Raich, which he argued before SCOTUS, and NFIB v. Sebelius, the major Obamacare challenge.

"Judge Janice Rogers Brown ... the D.C. Circuit judge 'is revered in libertarian legal circles for her stirring votes in defense of the Fourth Amendment against pro-police ‘orthodoxy’ and in defense of economic liberty against ‘burdensome regulation'.... Back in 2010, I mentioned her in my round-up of uncomfirmable conservative dream candidates for SCOTUS.

"Tom Campbell, before he joined the faculty (and served as dean) of Chapman Law, taught law at Stanford and business at UC Berkeley. This former SCOTUS clerk also has a Ph.D. from the University of Chicago — in economics, a Chicago specialty — and a J.D. from Harvard Law. As a former U.S. Congressman and California State Senator, he would bring much-needed political experience to the Court.

"Miguel Estrada ... a Harvard Law grad and ex-SCOTUS clerk, ... was famously nominated to the D.C. Circuit back in 2001, before falling victim to a filibuster (and despite receiving a unanimous 'well-qualified' rating from the ABA). He’s widely regarded as one of the finest appellate advocates in the nation, praised by Justice Elena Kagan — with whom he disagrees on many issues — as 'an extraordinary lawyer' with 'a towering intellect.'

Jonathan Turley ... [t]he George Washington University law professor supplements his scholarship with real-world litigation, in matters ranging from the Clinton impeachment to the Sister Wives case, and he engages in frequent media commentary, in broadcast and print as well as online....

"Johnson has a zero percent chance of winning — and that’s too bad, at least for the Supreme Court."

Read more: http://abovethelaw.com/2016/11/the-best-supreme-court-shortlist-of-them-all-gary-johnsons/?rf=1
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Harriet Tubman to appear on U.S. $20 bill

Harriet Tubman From a Libertarian POV - Hit & Run : Reason.com - Nick Gillespie:

April 21, 2016 - "Harriet Tubman (1822-1913) is going to be the new face of the $20 bill. Great choice.... Here are four ways that Tubman isn't just a great choice in general but a great choice from a specifically libertarian perspective.

1. She chose to live free or die and articulated that message for all to understand. 'I had reasoned this out in my mind," she said, recalling the death of her master and the necessity of escape. "There was one of two things I had a right to, liberty, or death; if I could not have one, I would have the other; for no man should take me alive; I should fight for my liberty as long as my strength lasted, and when the time came for me to go, the Lord would let them take me.'
2. She exemplified higher-law theory, which holds that laws violating basic human rights are null and void regardless of the repressive superstructures created to legitimate and maintain them, and risked her life freeing about 70 other slaves as the 'Moses' of the Underground Railroad.... At the same time, she didn't advocate violence in the mode of John Brown, whose goal of ending slavery she shared.
3. She believed in armed self-defense, a radical-enough concept for poor whites, let alone renegade blacks. During her Underground Railroad missions, she carried a pistol both for protection against slave-catchers and, reportedly, to keep ambivalent "passengers" in line. To this day, blacks have a strong and yet routinely overlooked belief in the Second Amendment, leading one historian to argue that 'guns made the Civil Rights movement possible.' The desire of relatively powerless minorities to arm themselves can still be heard in pro-Second Amendment remarks made by rappers such as Ice-T.
4. She was a suffragette who, after helping slaves escape and working as a spy and scout for the Union in the Civil War, committed herself to women being allowed to vote and have equality under the law. According to Wikipedia, when Tubman was asked whether she believed women deserved the vote, she replied, 'I suffered enough to believe it.'

"A year ago, when Tubman's name was first floated as a possible figure for a new $20 bill, a number of anti-capitalist commenters observed that Tubman of all people shouldn't be on money because, by their reckoning, slavery is the essence of capitalism. As Damon Root noted at the time, this is not just ahistorical in the extreme, it flies in the face of the explicit thought of leading former slaves.... [T]he abolitionists were extremely clear that slavery violated fundamental rights in a liberal order, one that shouldn't countenance slavery for exactly the same reason it should promote free labor. As Frederick Douglass, who corresponded with and thought extremely highly of Tubman, wrote in a scathing letter to his former owner, 'In leaving you, I took nothing but what belonged to me, and in no way lessened your means for obtaining an honest living.'"

Read more: http://reason.com/blog/2016/04/21/4-ways-harriet-tubman-totally-kicked-ass
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