Friday round-up

At The Economist’s Democracy in America blog, Steven Mazie observes that Monday’s decision in Epic Systems v. Lewis, in which the court held that arbitration clauses in employment contracts that require employees to forgo class and collective actions are enforceable, “gives employers a powerful tool to shield themselves from time-consuming, costly litigation,” noting that “[n]ow that America’s highest court has blessed this practice, which already affects some 54% of non-unionised workers, companies are likely to include it in more employee contracts.” At ACSblog, Ruben Garcia argues that in “Epic Systems … and … Encino Motor Cars v. Navarro … last month … seem to signal the beginning of radical retrenchment of protective labor laws in ways that Congress never intended, using canons of construction that can be chosen at will to suit any particular outcomes.” Additional commentary comes from William Gould at Stanford Law School’s Legal Aggregate blog and Arthur Sapper at Ogletree Deakins. At The National Law Journal (subscription or registration required), Tony Mauro looks at what the court’s opinion tells us about its author Justice Neil Gorsuch’s writing style, observing that it “seems to have fewer rough edges of the kind that ruffled feathers in the past.”

At Constitution Daily, Scott Bomboy highlights Janus v. American Federation of State, County, and Municipal Employees, Council 31, in which the court is considering whether an Illinois law allowing public-sector unions to charge nonmembers for collective-bargaining activities violates the First Amendment, observing that the decision “could potentially overturn a 41-year-old precedent.” At Governing, Daniel Vock considers whether “all the public-sector labor protests since” the oral argument will influence the court’s decision in the case. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case.]

In an op-ed for The Hill, Julia Raifman and Sandro Galea discuss recent research they conducted that “sheds light on how the denial of services to same-sex couples — such as decorating a wedding cake, in [Masterpiece Cakeshop v. Colorado Civil Rights Commission,] the case currently before the Supreme Court — can harm health.” At Ikuta Matata, Sean Smith wonders whether the Supreme Court’s ruling in Masterpiece Cakeshop might influence a similar case pending in the United Kingdom.

Briefly:

• At Bloomberg, Greg Stohr reports that Justice Neil “Gorsuch, appointed by President Donald Trump, has been less of a bomb-thrower and more of an inside player in the court’s current term,” showing “an ability to write opinions that hold together 5-4 conservative majorities along with a willingness to occasionally align with the court’s liberal wing.”
• For the Associated Press, Mark Sherman and Jessica Gresko report that “at a recent event in Washington, [former solicitors general Justice Elena] Kagan and [Paul] Clement agreed new administrations should be sparing in changing their predecessors’ positions in pending Supreme Court cases.”
• At Stanford Law School’s Legal Aggregate blog, Gregory Ablavsky maintains that the court’s decision this week in Upper Skagit Indian Tribe v. Lundgren, in which the justices remanded a property dispute involving an Indian tribe to the lower court for it to consider an alternative common-law basis for its holding that the tribe was not immune from suit, “raises deep and fundamental questions about the place of Native nations within the U.S. constitutional framework.”
• The latest episode of Counting to 5 (podcast) discusses “four newly granted cases and two new opinions in argued cases.”
• At Howe on the Court, Amy Howe reports that the federal government has recommended that the Supreme Court review “a legal dispute over fuel taxes” on an Indian-owned wholesaler in Washington state.
• At the Cato Institute’s Cato at Liberty blog, Trevor Burrus and Reilly Stephens weigh in on Gundy v. United States, in which the justices will decide whether a provision of the federal sex-offender act violates the nondelegation doctrine, maintaining that the case “presents an excellent opportunity for the Court to protect the separation of powers in an area where it has otherwise been skittish.”

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