mass dissent · edgery, olivia paquette, emely portillo & maria solis kennedy. august 6: legal...

Guild Newspage 3

NLG Summer Retreat &Welcome a New NLG

Employeepage 4

Supreme Court’s Criminal Law Cases

page 5

Tale of Two Cases:Trump v. Hawaii andMasterpiece Cake

page 6

Janus v. State, County &Municipal Employees:

Can the Labor MovementCounterstrike?

page 8

Mass DissentSeptember 2018 www.nlgmass.org Vol. 41, No. 4

Supreme Court & its Latest Term

September 2018

This is our annualSupreme Court issue of MassDissent, and what was mostimportant this term is whathappened right after the termended: Justice Kennedy an-nounced his retirement.While Justice Kennedy hasfor years been the Court’sswing vote, joining the fourmore liberal justices (Breyer,Ginsburg, Kagan, andSotomayor), for instance,half of the time in 2016 on 5-3 or 5-4 votes, this past term,the N.Y. Times calculated, henever once joined the liberalsin those close votes, leadingto what the Times called aterm “marked by division,disruption and an extraordi-nary string of 5-to-4 conser-vative victories ending inblockbuster rulings uphold-ing President Trump’s travelban and dealing a body blowto public unions.” With new (expected)Justice Kavanaugh we canlook forward to a similar,conservative, and distressingCourt next term, one thatlikely would have beenmarkedly different had, for

instance, President Obama’schoice, Merrick Garland,joined the Court. “At least14 cases this term likelywould have come out theother way had the Senate letGarland through,” ProfessorLee Epstein said, including“the travel ban, racial gerry-mandering, required[employee] arbitration, abor-tion information, and oth-ers.” (We would include thepolitical gerrymanderingcases, where it seems likelythe four more liberal justices,if joined by Justice Garland,would have taken on theissue rather than avoiding thecases on technical grounds). We write in this issueabout three of those conser-vative “blockbuster” victo-ries: the travel ban, publicunions, and MasterpieceCakeshop cases, all withJustice Kennedy in themajority, as well as threeimportant cases for our manymembers who practice crimi-nal defense. In these latter cases, theSupreme Court offered a few

In This Edition

BOARD MEETING

September 19, 6:00 pm

41 West St., 7th Fl.Boston

Massachusetts Chapter National Lawyers Guild 41 West St., Boston, MA 02111

Continued on page 11

MassDissent 18/09.qxp_Layout 1 8/21/18 3:57 PM Page 1

September 2018 Mass Dissent

BOARD OF DIRECTORS

CO-CHAIRPERSONSJosh Raisler Cohn, CPCSCarl Williams, ACLU of Mass.

TREASURERDavid Kelston, Shapiro Weissberg & Garin

SECRETARYBenjamin Falkner, Krasnoo Klehm & Falkner

CHIEF FINANCIAL ADVISORSJennifer Norris, Petrucelly, Nadler & Norris

Jeff Petrucelly

MEMBERSRebecca Amdemariam, CPCSMakis Antzoulatos, CPCS

Ricardo Arroyo-Montano, CPCSBrian Flynn, GBLS

Judith Glaubman, Freelance ResearcherLee Goldstein, Goldstein & Feuer

Jasmine Gomez, Free Speech For PeopleDavid Kelston, Shapiro Weissberg & Garin

Zachary Lown, CPCSErica Medina, CPCS

Bonnie Tenneriello, PLSEden Williams, Legal Analyst

LAW STUDENT REPRESENTATIVESGabriel Frumkin, Boston CollegeMichael Endick, Boston UniversityAnna Nathanson, Harvard

Monica Shah & Marecca Vertina, NUDebra Wilmer, UMass Dartmouth

Sarita Manigat, Western New England

STAFFExECUTIvE DIRECTOR/EDITOR

Urszula Masny-Latos

ADMINISTRATIvE COORDINATORKayla Degala-Paraiso

Mass Dissent (ISSN 0887-8536) is publishedevery other month (February, April, June,September, October, December) by the NationalLawyers Guild-Mass. Chapter, 41 West St.,Suite 700, Boston, MA 02111. Second-classpostage paid at Boston, MA. POSTMASTER:Send address changes to Mass Dissent, NLG,41 West St., Suite 700, Boston, MA 02111.

NATIONAL LAWYERS GUILDMassachusetts Chapter, Inc.

41 West St., Suite 700Boston, MA 02111

tel.: 617-227-7335 • fax: [email protected] • [email protected]

www.nlgmass.org

Street Law Clinic Project: The Street Law Clinic project providesworkshops for Massachusetts organizations that address legal needs ofvarious communities. Legal education workshops on 4th AmendmentRights (Stop & Search), Landlord/Tenant Disputes, Workers’ Rights,Civil Disobedience Defense, Bankruptcy Law, Foreclosure PreventionLaw, and Immigration Law are held at community organizations, youthcenters, labor unions, shelters, and pre-release centers. If you are anNLG attorney, law student, or legal worker interested in leading a work-shop, please contact the project at 617-227-7335 or [email protected].

Lawyer Referral Service Panel (LRS): Members of the panel providelegal services at reasonable rates. Referral Service Committee members:Benjamin Dowling, Sebastian Korth, Douglas Lovenberg, and JonathanMessinger. For more information, contact the LRS Coordinator at 617-227-7008 or [email protected].

Foreclosure Prevention Task Force: Created in June 2008, the TaskForce’s goal is threefold: (1) advocate for policies that address issuesfacing homeowners and tenants of foreclosed houses, (2) provide legalassistance to these homeowners and tenants, and (3) conduct legal clin-ics for them. If you are interested in working with the Task Force, pleasecall the office at 617-227-7335.

Mass Defense Committee: Consists of two sub-committees: (1)“Legal Observers” (students, lawyers, activists) who are trained to serveas legal observers at political demonstrations and (2) “Mass DefenseTeam” (criminal defense attorneys) who represent activists arrested forpolitical activism. To get involved, please contact the NLG office at 617-227-7335.

Litigation Committee: Established in 2010, the Committee bringscivil lawsuits against large institutions (such as government agencies,law enforcement, banks, financial institutions, and/or large corporations)that engage in repressive or predatory actions that affect large numbersof people and perpetuate social, racial and/or economic injustice orinequality. To get involved, please contact the NLG office.

NLG National Immigration Project: Works to defend and extend thehuman and civil rights of all immigrants, documented and undocument-ed. The Project works in coalitions with community groups to organizesupport for immigrants’ rights in the face of right-wing political attacks.For more information contact the NLG National Immigration Project at617-227-9727.

NLG Military Law Task Force: Provides legal advice and assistanceto those in the military and to others, especially members of the GIRightsHotline, who are counseling military personnel on their rights. It alsoprovides legal support and helps find local legal referrals when needed.For advice and information, GI’s can call 877-447-4487. To getinvolved, please contact Neil Berman ([email protected]) orMarguerite Helen ([email protected]).

Join a Guild Committee



GUILD NEWS

Youare invited to the “NLG Presents - Think & Drink” HappyHour - a quarterly event held on the 2nd Wednesday ofJanuary, April, September, and November (or June), atRed Hat Café in Boston. If you have ideas for a presen-tation or would like to be a speaker, please call the NLGoffice at 617-227-7335.

Thisyear’s NLG Convention will be in Portland, OR, atBenson Hotel, from Wednesday, October 31 toSunday, November 4. The Convention will be filled withCLEs, workshops, panels, social events, tours of the city,and camaraderie. Hope you can attend! For more infor-mation and to register go to www.nlg.org.

NLG HAPPY HOUR NLG CONVENTION

Street Law Clinic ReportThe following clinics and trainings were conducted formembers of Boston area organizations and agencies:

July 11: Legal Observing at rally organized byNortheastern students to put presure on NortheasternUniversity president to terminate their contract withICE, by Daniel D’Lugoff & Charles Haigh.

July 22: Legal Observer training for Cosechaactivists, by Melinda Drew. • Direct Actiontraining for Cosecha activists who organizedprotests at Northeastern against the University’scontract with ICE, by Jeff Feuer & Lee Goldstein.

July 23: Legal Observing at a rally at NorheasternUniversity against their ICE contract, organized byCosecha, by Zach Coto, Celyne Camen, CodyEdgerly, Mia Lloyd, Olivia Paquette & MariaSolis Kennedy.

July 24: Direct Action training in Lowell for anICE Watch group, by Makis Antzoulatos.

July 29: Direct Action training for Cosechaactivists who organized against Northeastern’s con-tract with ICE, by Jeff Feuer.

July 31: Legal Observing at a Cosecha rally atNortheastern by Celyne Camen, Zach Coto, Cody

ARTICLES FOR MASS DISSENTThe October issue of Mass Dissent will focus on prisoners rights.

If you are interested in submitting an article, essay, analysis, or art work (cartoons, pictures) related to the topic,please e-mail your work to [email protected].

The deadline for articles is September 15.

Edgery, Olivia Paquette, Emely Portillo &Maria Solis Kennedy.

August 6: Legal Observer training atNortheastsern Law School, by Melinda Drew.

NLG Happy Hour

CHALLENGING ABUSIVE POLICINGPRACTICES

an evening with

BosCops Collective

**********

Wednesday, September 12, 20186:00 - 8:00 pm

Red Hat Cafe (9 Bowdoin St., Boston)

Join us for an important discussion withFatema Ahmad, Deputy Director of theMuslim Justice League, and other members ofthe BosCops Collective, a group of individu-als and organizations that have come togetherto challenge abusive policing and criminaliza-tion of communities in and around Boston.



NLG Summer Retreat

Welcome Kayla Degala-Paraiso

On a hot Thursday afternoon in August, agroup on NLG-Mass Chapter membersgathered in Dorchester for the AnnualSummer Retreat. We had an engagingand inspiring conversation about the cur-rent state of the NLG, where we see us inthe near future, and what paths we shouldtake to accomplish our goals and to con-tinue fighting wrongs created by bad lawsand policies. We also discussed financial stabilityof the Chapter and how to secure fundingfor all our programs and works. If you would like to be involved inany of the Chapter’s committees pleasecontact our office at 617-227-7335

NLG Summer Retreat participants enjoy an engaging, inspiring and veryproductive discussion.

Photo by Eden Williams

We are pleased to welcome Kayla Degala-Paraiso to the NLG-Mass Chapter as ourAdministrative Coordinator and referral servicehelp. Hailing from New Haven, CT, Kaylarecently graduated from Pitzer College in LosAngeles with a B.A. in Political Science and aB.A. in English/World Literature. When shewas not submersed in Maoist and post-colonialtheories, she competed on the Pomona-Pitzertrack and field team, taught yoga, studiedabroad in Italy and in Nepal, wrote creativenon-fiction, and organized through the Filipinxstudent association, Kasama. As a new Bostonresident, Kayla is excited to run, once again, inthe revitalizing New England autumn, and todiscover Boston’s jazz and hip hop scenes. Sheis also eager to connect with local communitiesthrough both grassroots political action and theNLG. If she is not answering calls for the NLGLawyer Referral Service, you can catch Kaylagiving basic climbing instruction at the RockSpot climbing gym or building community

through Boston Philippine Education,Advocacy, and Resources.



t has seemed in recent yearsthat the Court has been shrink-

ing the privacy protections of theFourth Amendment bit by bit.This year, in a trio of FourthAmendment cases, the Courtexpanded those privacy protec-tions, even if ever so slightly. In the first case, in a unani-mous opinion written by JusticeKennedy, the Court held, in Byrdv. United States, that someone inotherwise lawful possession of arental car has a reasonableexpectation of privacy even if therental agreement does not listthem as an authorized driver. Mr.Byrd’s girlfriend had rented a car,and the rental agreement permit-ted only certain persons to drivethe car, and denied coverage inthe event of damage caused by anon-authorized driver. Thoughhe was not listed, Mr. Byrd drovethe car on the highway, where heattracted the attention of a statetrooper, who stopped Byrd“because he was driving with hishands at the ‘10 and 2’ positionon the steering wheel, sitting farback from the steering wheel, anddriving a rental car.” One canonly assume that Mr. Byrd wasstopped for driving while blackand for no other reason, thoughthis fact went unstated. Since Mr.Byrd was not named on the rentalcontract, the officers believed thatthey did not need his consent tosearch the car. Not so fast, said the Court. Ina rare example of the justicesemploying a kernel of real-worldknowledge, the Court noted thatcar-rental agreements have longlists of restrictions, like driving onunpaved roads or driving whileusing a handheld cell phone, and

that such provisions have nothingto do with a driver’s reasonableexpectation of privacy. As aresult, the Court ruled that the“mere fact that a driver in lawfulpossession or control of a rentalcar is not listed on the rentalagreement will not defeat his orher otherwise reasonable expec-tation of privacy.” In the second case, in aneight to one opinion written byJustice Sotomayor, the Courtheld, in Collins v. virginia, that theautomobile exception to the war-rant requirement does not applyto vehicles parked in the drivewayof a home. Justice Alito suppliedthe lone dissent. In this case, anofficer investigating the theft of amotorcycle stood on the streetand saw a motorcycle coveredwith a tarp parked in the drivewayof Mr. Collins’ home. The officerwalked onto the residential prop-erty and up to the top of the drive-way where the motorcycle wasparked. There, he lifted up thetarp to reveal the motorcycle forwhich he was searching. Thegovernment argued that the offi-cer did not need a warrantbecause of the automobile excep-tion to the warrant requirement. The government’s argumentwas dead on arrival. The Courtobserved that “searching a vehi-cle parked in the curtilage [theprivate area around a home]involves not only the invasion ofthe Fourth Amendment interest inthe vehicle but also an invasion ofthe sanctity of the curtilage.” Inorder to search a vehicle underthe automobile exception, the lawrequires the officer to have a law-ful right of access to the vehicle.“The automobile exception doesnot afford the necessary lawfulright of access to search a vehi-cle parked within a home or its

curtilage because it does not jus-tify an intrusion on a person’sseparate and substantial FourthAmendment interest in his homeand curtilage.” Thus, the Courtruled that, since the officer had noright to walk onto Collins’ drive-way, he had no right to search themotorcycle by lifting the tarp. In the third case, a five to fouropinion written by Justice Robertsand joined by Ginsburg, Breyer,Sotomayor and Kagan, the Courtheld, in Carpenter v. U.S., that thegovernment needs a warrant toobtain cell-site location informa-tion (“CSLI”). Many cell phonesconnect to cell sites several timesa minute whenever their signal ison, constantly generating time-stamped records of the phoneslocation known as CSLI. As thenumber of cell phones and cellsites grows, “modern cell phonesgenerate increasingly vastamounts of increasingly preciseCSLI.” The Court observed that,“[m]uch like GPS tracking of avehicle, cell phone location infor-mation is detailed, encyclopedic,and effortlessly compiled.” It fur-ther observed that, “In light of thedeeply revealing nature of CSLI,its depth, breadth, and compre-hensive reach, and theinescapable and automaticnature of its collection, the factthat such information is gatheredby a third party does not make itany less deserving of FourthAmendment protection.” As a result, the Court heldthat “an individual maintains alegitimate expectation of privacyin the record of his physical move-ments as captured through CSLI.”In turn, the Court found that thegovernment must generally obtaina warrant supported by probable


Continued on page 9

by Benjamin Falkner

I


e write about these twoimportant cases from last

term together because (surprise)the Court’s conservative majorityin each gives very different weightto the underlying actor’s intent –ignoring Trump’s while relying ona Colorado Commission’s – toreach its conservative outcome.Thus, as is so often the case, ide-ology prevails, though in quite dif-ferent contexts.

Trump v. HawaiiIn this, the President’s third visitto the courts to defend his thirditeration of the travel ban, he pre-vailed, vacating the nationwidepreliminary injunction. What isperhaps most important aboutTrump’s victory is that a fair read-ing of the case makes it clear thathis opposition never had achance in this Supreme Court.Put differently, and more broadly,the case shows something quitedisturbing: this president, thisclassic “strong man” who vilifiesthe press (and the courts whennecessary), who mobilizes his(white) base by appeals to theirgrievances (they are theoppressed, no one cares aboutthem except him) and attackstheir supposed enemies (every-one who is not white), is, to ourdetriment, capable of strategicthinking, or at least capable of lis-tening to lawyers who thinkstrategically. Thus, ignorantthough he may be (ignorance

seems endemic among strongmen), Trump is no fool, and thethird iteration of his travel banpassed Supreme Court reviewbecause the president was capa-ble of tinkering with it so it wasalmost certain to do so. Specifically, this third iteration(“Proclamation No. 9645, issuedSeptember, 2017), made threechanges to its predecessors: 1) a“world-wide” review by theHomeland Security and StateDepartment of all foreign govern-ments to determine which haddeficient information-sharingpractices with the U.S. such thatwe could not determine who trav-eling from that country to oursmight be a security risk; 2) there-after a 50-day period during whichthe U.S. would “encourage” coun-tries that failed the test to improvetheir procedures; and only then 3)identification of seven countrieswhose nationals would be subjectto entry restrictions tailored toeach country – Iran, Libya, NorthKorea, Syria, venezuela, andYemen1 – with case-by-casewaivers and six-month reviews,the first of which led to the lifting ofthe restriction on Chad. Thus,said the administration, therestrictions had nothing to do withreligion – two of the countries arenot even Muslim-majority coun-tries – and everything to do withnational security. Plaintiffs challenged theProclamation – except applied tovenezuela and North Korea – asviolating the Immigration andNationality Act (INA) and the

Establishment Clause of the FirstAmendment because it was moti-vated not by legitimate concernsfor national security but insteadby animus toward Muslims. TheChief Justice, joined by JusticesKennedy, Thomas, Alito, andGorsuch, had little trouble findingthe Proclamation lawful. First, the majority found thatthe INA establishes numerousgrounds to exclude “aliensabroad” from the United Statewhenever the president finds thattheir “entry would be detrimentalto the interests of the UnitedStates,” citing 8 USC 1182(f). “Byits terms,” in language sure to bequoted for years, the ChiefJustice wrote, “§1182(f) exudesdeference to the president inevery clause.” The 12-pageProclamation, the Chief Justicewrote, thoroughly describes theprocess, agency evaluations, andrecommendations underlying thepresident’s chosen restrictions,was well within the president’sdiscretion under the INA, and“plaintiffs’ request for a searchinginquiry into the persuasiveness ofthe president’s justifications [was]inconsistent with the broad statu-tory text and the deference tradi-tionally accorded the president” inmatters of national security. As tothe Establishment Clause, themajority essentially found irrele-vant “precedents concerning lawsand policies applied domestical-ly,” as well as Trump’s numerousstatements showing animustoward Muslims and his determi-nation to keep them out of thecountry, statements the Courtcourteously described as “castingdoubt on the official objective ofthe Proclamation.” While, to its


Tale of Two Cases:Trump v. Hawaii and Masterpiece Cake

Continued on page 7

by David Kelston

W

______________________1 E.g., blanket prohibitions on Iran, North Korea, and Syria; lesser restrictions on theremaining countries, with exceptions for lawful permanent residents of the U.S. trying toreturn and those granted asylum in this country.


credit, the majority noted variousof Trump’s most offensive tweets(including tweeting links to anti-Muslim propaganda videos) andexpressed its discomfort with hiscampaign and later statements, itemphasized the “authority of thepresidency itself” (not just “a par-ticular president”) and the factthat the Proclamation “is factuallyneutral toward religion.” Thus,even assuming that the courtscould inquire into the persuasive-ness of the president’s findings insupport of the Proclamation, andassuming that the Court couldapply a rational basis review tothe Proclamation that consideredthe extrinsic evidence, theProclamation would still beupheld as reasonably resultingfrom a justification (national secu-rity) independent of unconstitu-tional animus. In reaching itsconclusion, the Court reviewed insome detail, and relied on theProclamation’s proceduresreviewed above (“worldwide”review of vetting and informationsharing, 50-day opportunity toimprove procedures, etc.) as wellas the presence in the list of twocountries, North Korea andvenezuela, that are not majorityMuslim. Finally, while determining thatthe plaintiffs had not shown a like-lihood of success on the merits,and thus that the preliminaryinjunction issued by the HawaiiDistrict Court must be vacated,the majority “overruled” theCourt’s earlier and notoriously

wrong decision in Korematsu v.United States, 323 U.S. 214(1944), stating that it upheld apolicy that was unconstitutionaland “morally repugnant.” In his brief concurrence, akind of hopeless swan song,Justice Kennedy both endorsedthe opinion of the majority (whichhe joined) in its “substantial defer-ence … accorded to the Executivein the conduct of foreign affairs,”while he urged Trump (withoutnaming him) to respect theConstitution. Justice Thomas alsowrote an additional concurrence tofind additional problems with plain-tiffs’ claims, question nationalinjunctions, and generally bolsterhis position as the Court’s mostconservative vote. In dissent,Justices Breyer and Kagan ques-tioned the Proclamation asapplied in order to leave somehope for the further proceedings atthe District Court (e.g., “The StateDepartment reported that duringthe Proclamation’s first month, twowaivers were approved out of6,555 eligible applicants.”) Thus,said Justice Breyer, the injunctionshould stay in place while furtherfact-findings are made below. Bycontrast, Justices Sotomayor, in adissent joined by JusticeGinsburg, minced no words infinding that the Proclamation“masquerades behind a façade ofnational-security concerns.” Theirdetailed deconstruction of the sup-posed neutrality of theProclamation is great reading,2even as we realize that it is fromonly two of the nine justices, as istheir repeated insistence that

facial neutrality is not determina-tive in the Establishment Clausecontext.

Masterpiece Cake Justices Sotomayor andGinsburg’s traditional Establish-ment Clause analysis was fol-lowed in this case – but by theconservative majority for a con-servative purpose. The issue inMasterpiece was the baker’srefusal to prepare a weddingcake for a same sex couplebecause of the baker’s religiousobjection to same sex marriages.The couple filed a claim of dis-crimination on the basis of sexualorientation with the Colorado CivilRights Commission, which founda violation of the Colorado Anti-Discrimination Act. TheColorado courts affirmed, andJustice Kennedy wrote the opin-ion of the Court, joined by ChiefJustice Roberts and JusticesBreyer, Alito, Kagan, andGorsuch, Justices Ginsburg andSotomayor dissenting (JusticesBreyer and Kagan also wrote aseparate concurring opinion). Justice Kennedy found thatthe case presented a difficultquestion of the proper reconcilia-tion of two principles: the state’sright to protect “the rights and dig-nity of gay persons” wishing tomarry but facing discrimination,and the right “of all persons toexercise fundamental freedomsunder the First Amendment,” i.e.,freedom of speech and free exer-cise of religion. The “delicatequestion” of when one must yieldto the other, Justice Kennedywrote, “needed to be determinedby an adjudication in which reli-gious hostility on the part of thestate” would play no part. Then,the Court essentially avoided the


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Tale of Two Cases

______________________2. E.g., the ban on North Koreans and venezuelans targets nationals previously subjectto exclusion (North Korea) or only a handful of government officials (venezuela); the“worldwide review” was reported in a spare 17 pages and the review was led by a manwho had publicly expressed his support for the “great idea” of banning Muslims, etc.


n June 27, 2018, the U.S.Supreme Court released

their decision in favor of MarkJanus, an Illinois child safety spe-cialist who contested his Union“agency fee” of $535 per year. In Janus, the 5-4 conserva-tive majority dismantled Abood v.Detroit Board of Education, 431U. S. 209, pro-Union precedentwhich stood for more than fortyyears, rationalizing that payingUnion dues is a form of com-pelled speech. Justice Alito, writing for thefive-member majority in Janus(with Chief Justice Roberts andJustices Kennedy, Thomas, andGorsuch), reasoned that thestate’s authorizing the compulso-ry agency fee – that part of uniondues attributable to the union’scollective bargaining costs butnot its other political work –required an “exacting” scrutinystandard, and the majority over-ruled Abood as inconsistent withFirst Amendment principles, i.e.,Janus’ right to “refrain” from sub-sidizing union speech. Themajority dismissed as not com-pelling Abood’s concerns withlabor peace and avoiding freerider problems. But as Justice Kagan, writingin dissent for herself and JusticesBreyer, Ginsburg, andSotomayor, made clear, the 41-year-old Abood decision, involv-ing Detroit’s teacher’s union,served important interests andwas widely relied on by statesand unions across the country byrequiring employees who havenot joined the union to pay it a

service charge. These interestsincluded facilitating reachingagreements by enabling a singleunion representative to speak forthe employees – the “principle ofexclusive union representation”that has been a “central elementin industrial relations since theNew Deal,” long a norm in the pri-vate employment sphere – andrequiring that unions be ade-quately funded for the arrange-ment to work. The agency fee,the Abood Court recognized, dis-tributed the union’s costs of col-lective bargaining fairly to allemployees who benefit, unionmembers or not, thus avoidingthe problem of “free riders,” con-sistent with the union’s legal dutycompelling it to fairly represent allworkers in the bargaining unit,whether or not they joined theunion. As the dissent empha-sized, overturning Abood will pro-duce a “collective action problemof nightmarish proportion” –every employee will have a per-verse economic incentive not topay the union while benefittingfrom its services. And as Aboodheld, “[w]here the state imposesupon the union a duty to deliverservices, it may permit the unionto demand reimbursement forthis.” 500 U.S. at 556. All this themajority ignored, in the culmina-tion of a six year-long campaignto cripple the fastest growingunion sector in the country, seeKnox v. Service Employees, 567U.S. 298 (2012) and Friedrichs v.California Teachers Association,576 U.S. __ (2016) (per curiam). Janus needs to be seen inthe context of declining unionmembership in the U.S. UnitedStates Labor Union membershipis declining (7% of private work-

ers, 35% of public employees,10% overall), in no small part dueto political pressure from employ-er lobbyists who oppose collec-tive bargaining rights. Twenty-eight states have passed Right toWork (for less) legislation, sixsince 2012 (bucking this trend,however, on August 7, 2018,Missouri voters rejected Right toWork for Less legislation). Bycontrast, overall workplace Unionmembership peaked in 1954 at35% and remained as high as20% as recently as 1983. Butnow, compulsory membership ingovernment labor unions in theUnited States is no more, andonly twenty-three States requireunion dues or service fees. Union breakers have alwaystried to divide “closed shop”-compulsory membership advo-cates and “open shop” - voluntarymembership advocates. In thiscontext Janus is unquestionablya further blow to labor movementrights, compounded by the dis-turbingly unchecked, unapolo-getic tendencies of our elected--or should we say purchased, viaCitizens United, 558 U.S. 310“speech”--executive and legisla-tive leaders lust for robber barondestruction of human capital, theenvironment, even reason, intheir unending quest to line theircoffers, indifferent to lasting neg-ative consequences to We thePeople.

Can the labor movementcounterstrike?

Yes. Five ideas follow.

• First, note that Unions wereillegal in the United States ofAmerica for many years, yet they

by Andrew McLeod & JonathanMessinger

O


Janus v. State, County and Municipal Employees:Can the Labor Movement Counterstrike?

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Janus v. State, County and Municipal Employees

persevered. They still do. TheArizona, Oklahoma, West virginia,and Kentucky teachers strikes in2018 all happened in States thatare Right to Work (for less) andthus technically illegal. Yet deter-mined and organized workersunited to fight these injustices.

• Second, Unity and Solidaritystill define Unions. Many teacherswho struck lacked official authori-ty, or even leadership support, ini-tially. Their fighting spirit wasundeterred. Organizing drives,strikes, pro-Union legislation andelecting labor supporting candi-dates can stem the tide of Union-busting.

• Third, Unions must betterengage their members as trulydemocratic not-for-profit institu-tions. Are events and meetingspromoted, including fun activities,and are communications consis-tently transparent, responsiveand connective? Is each Uniontransparent, responsive and con-necting with their members? Canwe workers participate instead ofmerely standing by as our rightsfurther degrade? Complaining

about Union leadership, alone, isineffective. We must heightenour individual and collectivemorale and build our strength innumbers.

• Fourth, there is no need to sitidly by as decisions such asJanus further distort the FirstAmendment. Freedom ofspeech? Great idea! Thank youfounders! Let us use our voices topromote worker rights and winpublic opinion. News outletsrarely cover Unions other thanduring labor conflicts, but this canbe changed for the better. In the1950’s, labor unions had radioprograms five nights a week onhundreds of stations. Now thereare many options for distributinglow cost content, as proven bysuccessful campaigns such asthe Teacher Strikes aforemen-tioned. With Twitter, Instagram,YouTube, Facebook, podcastsand other current and/or futureonline streaming services, thelabor movement can and shouldtell their story. Even many Unionmembers themselves are notaware of how workers and fami-lies are helped. Pro-Unionistsmust spread these stories for thepublic good.

• Fifth, Janus favors Union“open shops” - dues are not com-pulsory. Many countries, eventhose with higher unionizationrates than the United States,have struggled with the issue ofcompulsory membership. Somenations, such as Germany, dis-turbed by their Nazi legacy, haveeven outlawed them. Japan andEngland also require open shops.Yet Unions survive, even thrive,in these places. Janus is certainly a harshdecision for Union members andsupporters. But real wages con-tinue to shrink in this distortedeconomy which expressly favors“owners” over workers and trueunemployment remains high.What better time than now to jointogether, in solidarity, to increaseour labor rights? As Joe Hill once said: “Don’twaste time mourning. Organize!”


cause before acquiring CSLI. In a potentially hopeful sig-nal, the Chief Justice reachedback to, and resurrected theancient warning of LouisBrandeis, in dissent:

As Justice Brandeis explained

in his famous dissent, theCourt is obligated—as“[s]ubtler and more far-reach-ing means of invading privacyhave become available to theGovernment”—to ensure thatthe “progress of science” doesnot erode Fourth Amendmentprotections. Olmstead v. U.S.,277 U. S. 438, 473–474 (1928).

We hope that the Court willcontinue to heed its obligation.

Benjamin Falkner is the Secretaryof the NLG-Mass Chapter and isa law partner at Krasnoo Klehm &Falkner in Andover.


Andrew McLeod is a consultant,organizer, and media producer.Jonathan Messinger is a memberof the NLG-Mass Chapter and amember of the NLG LitigationCommittee.



“delicate question” before it byblaming the ColoradoCommission:

Whatever the confluence ofspeech and free exercise prin-ciples might be in somecases, the Colorado CivilRights Commission’s consid-eration of this case was incon-sistent with the State’s obliga-tion of religious neutrality.The reason and motive for thebaker’s refusal were based onhis sincere religious beliefsand convictions. The Court’sprecedents make clear thatthe baker, in his capacity asthe owner of a business serv-ing the public, might have hisright to free exercise of reli-gion limited by generally appli-cable laws. Still, the delicatequestion of when free exer-cise of his religion must yieldto an otherwise valid exerciseof state power needed to bedetermined in an adjudicationin which religious hostility onthe part of the State itselfwould not be a factor in thebalance the State sought toreach. That requirement,however, was not met here.When the Colorado CivilRights Commission consid-ered this case, it did not do sowith the religious neutralitythat the Constitution requires.

The Commission’s sin? Afterfinding through investigation thatthe baker routinely “turned awaypotential customers [seekingwedding cakes] on the basis oftheir sexual orientation,” it con-ducted a formal hearing beforean Administrative Law Judge,who found that Colorado’s anti-

discrimination law was neutral andproperly applied. The Commis-sion affirmed the ALJ’s decision,finding that the Free ExerciseClause “does not release an indi-vidual of the obligation to complywith a valid and neutral law of gen-eral applicability,” a conclusionJustice Kennedy clearlyendorsed: “It is unexceptional thatColorado law can protect gay per-sons, .. in acquiring whateverproducts and services theychoose on the same terms andconditions as are offered to othermembers of the public.” But, saidthe Court, when the seven-mem-ber Commission convened itspublic hearing, two commission-ers made statements that whilereligious beliefs are protected,actions may not be (a correctstatement), and at a second hear-ing one commissioner made arather heated statement that reli-gion had been used historically tojustify all manner of oppressivepractices, including slavery (also,obviously, a true statement,though context is important). Andthese statements, wrote JusticeKennedy, “cast doubt on the fair-ness and impartiality” of theCommission’s adjudication. Themajority set aside the Commis-sion’s order on the grounds thatthe “official expressions of hostilityto religion in some of the commis-sioners’ comments” were incon-sistent with the Free ExerciseClause requirements. While Justice Kagan, joinedby Justice Breyer, concurred, sheemphasized that it is establishedlaw, reaffirmed by the majority,she said, that “a vendor cannotescape public accommodationslaw because his religion disap-proves selling a product to a [pro-tected] group of customers,”Justices Thomas and Gorsuch

wrote separate concurrences,Justice Gorsuch suggesting andJustice Thomas outright sayingthat any governmental actionrestricting religion in any waymust survive a strict scrutinyreview, and adding that he wouldhave invalidated the Commis-sion’s decision, even without theCommissioners’ “disturbing”comments, on free speechgrounds. Justice Ginsburg,joined in dissent by JusticeSotomayor, went to the heart ofthe matter: the baker would notprovide goods and services to asame sex couple that he wouldprovide to a heterosexual couple,and this violated the (neutral)Colorado statute, regardless ofcomments “of one or twoCommissioners.”______________________

Whatever else might be saidabout the two decisions, the con-trast between the way in whichthe actor’s intent is treated isstark. To be sure, presidents willbe afforded great deference inthe matters of national security,but here the hostility to Muslimsby this president, as recognizedin both the majority and dissent-ing opinions, was palpable. InMasterpiece Cakeshop, themajority’s reliance on oneCommissioner’s “disturbing”comments seemed an after-thought, hardly noticed by thecourts below. Who sits on theCourt always matters, and espe-cially matters today with the pres-ident we face.

David Kelston is a Treasurer ofthe NLG-Mass Chapter and anattorney at Shapiro Weissberg &Garin in Boston.

Tale of Two CasesContinued from page 7


rays of sunshine upon the otherwise generallybleak landscape. In three cases, the Courtrebuffed the government’s attempts to shrinkthe privacy protections of the FourthAmendment. In the first case, the Court heldthat someone in otherwise lawful possession ofa rental car has a reasonable expectation of pri-vacy even if the rental agreement does not listthem as an authorized driver. In the second, theCourt held that the automobile exception to thewarrant requirement does not apply to vehiclesparked in the driveway of a private home. Inthe third, the Court held that cell-site locationinformation is protected by the FourthAmendment. And a final note about Justice Kennedy.

We write in reviewing the travel ban case thatPresident Trump showed strategic sense in thatcase in pursuing his reactionary and dangerousagenda. More generally, he appears to havedone so both with his nominations for the lowerfederal courts and with Justice Kennedy, towhom Trump was unerringly polite and com-plimentary, and strategic – appointing his for-mer clerk (Justice Gorsuch) to fill JusticeScalia’s seat and now another Kennedy clerk tofill Justice Kennedy’s own seat. It’s no surprisethat Justice Kennedy began his resignation let-ter with the words, “My dear Mr. President.” Our work is cut out for us, both - inside andoutside the courts.

- David Kelston & Benjamin Falkner -


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