Daily Archives: April 27, 2023

Background

On April 18, 2023, the Supreme Court heard oral argument in the case of Groff v. DeJoy and considered whether to overturn the standard governing employee religious accommodation requests under Title VII.

Title VII requires employers to accommodate their employees religious beliefs and practices unless doing so would constitute an undue hardship on the conduct of the employers business. The Supreme Courts 1977 decision in TWA v. Hardison, which Petitioner Gerald Groff challenges, interpreted undue hardship to mean more than a de minimis cost.

Parties Positions

Groff is a devout Christian who was forced to resign from his job after the United States Postal Service (USPS) refused to consistently accommodate his Sunday Sabbath observance. His counsel first argued that the de minimis testwhich both the district court and Third Circuit referenced in affirming the denial of Groffs religious accommodationmakes a mockery of the English language and asked the Court to adopt the textually consistent standard of significant difficulty or expense. New York and Californias anti-discrimination laws already employ this standard, as do other federal statutes like the Americans with Disabilities Act. Groffs counsel next contended that under the statutory text, burdens on co-workers alone do not constitute an undue hardship and an employer citing such burdens must demonstrate how they disrupt its business operationswhich USPS did not do in this case.

The Solicitor General, on the other hand, urged the Court to clarify rather than overturn Hardison. While admitting that de minimis is not a proper interpretation of undue hardship, she argued that the EEOC and lower courts have nonetheless applied it to provide meaningful protection for religious observance in the workplace by interpreting it in light of the particular accommodations and the costs that the Court confronted in Hardison. The SG explained that Hardison used de minimis interchangeably with substantial cost, a phrase cited in footnote 14 of the case, and cautioned the Court against adopting any new verbal formulation that would call into question the well-developed body of case law applying the de minimis standard. Instead, she asked the Court to uphold Hardison on its facts, stating that the consistent payment of premium wages, regularly operating shorthanded, or altering a collective bargaining agreement all constituted an undue hardship.

Oral Argument

The argument was lively and fast-paced, with most Justices asking difficult questions of both parties.

Justice Thomas was the first to jump in, inquiring whether the amended text of Title VII was even at issue in Hardison. Counsel for Groff noted what the Justice has said repeatedly in other cases: that Hardisons de minimis standard was merely dicta because it interpreted the EEOC guideline in effect at the time rather than the statute itself. For her part, the SG argued that the amended statute carrie[d] the same meaning as the predecessor version as interpreted in light of the EEOC guidance and cited other cases in which the Court did not treat Hardisons standard as dicta.

Common Ground?

Justice Gorsuch sought to find common ground between the parties, commenting that both sides agreed that the test is context-dependent, that factors including the size of the employer and the reasonable options available to the employer are relevant, and that de minimis in isolation cannot be the test. He questioned whether the Court could simply say the de minimis standard was wrong and be done with it. Justice Kavanaugh similarly opined that the Hardison Courts reference to substantial cost seemed perfectly appropriate, suggesting that the Court merely make that clarification and allow lower courts to go forth.

In response, Groffs counsel stressed that more guidance was needed, especially given that under the governments position, it would constitute an undue hardship to require the largest airline in the world to pay an extra $100/week to attract an employee to take a Sabbatarians shift. So too would denying a single co-workers shift preference or any alteration of a collective bargaining agreement. None of these, he argued, would satisfy Groffs proffered significant difficulty or expense standard. The government did not disagree. While declining to defend the de minimis standard and agreeing she was amenable to a substantial cost test at the abstract level, the SG urged the Court to ensure that any clarification of Hardison not invalidate lower court decisions applying Hardison as written.

Lower Court Precedents

Such lower court decisions formed the basis of several Justices lines of questioning. Justice Barrett asked what the point of retaining the de minimis language was when it has led Courts of Appeals astray, remarking that even the amicus brief from the Americans United for Separation of Church and State did not defend the de minimis standard. Justice Alito pushed back on the notion that lower courts sufficiently protect religious minorities, noting the amicus briefs submitted by Muslims, Hindus, Orthodox Jews, and Seventh Day Adventists that argued the opposite. And Chief Justice Roberts inquired whether lower court precedent could even be trusted, given the fact that the strict neutrality principle underlying Hardison was undermined by EEOC v. Abercrombie & Fitch Stores in 2015. There, as counsel for Groff repeatedly pointed out, the Court stated that Title VII does not demand mere neutrality with regard to religious practices but gives them favored treatment. Justice Sotomayor appeared to disagree, opining that theres nothing in Abercrombie thats remotely inconsistent with Hardison.

Stare Decisis

Justices Kagan, Jackson, and Sotomayor expressed concerns about the Court doing Congress job, given that stare decisis is supposed to be at its peak in statutory interpretation cases. The SG made this point in earnest, arguing that Congress has tried and failed multiple times to codify a more stringent standard. While Groffs counsel agreed wholeheartedly that this is a policy question for Congress, he responded that Congress answered that question when it enacted the text of undue hardship in 1972. Congress, he asserted, should not be burdened with rectifying the Courts own error.

Burdens on Co-Workers

Several Justices asked about when a burden on a co-worker rises to the level of disrupting the business. Justice Barrett wanted to know whether poor morale is sufficient or if a co-worker must quit to show such a burden. Justice Kavanaugh remarked that all business owners know that morale is critical to a companys success. Groffs counsel emphasized that morale is not enough, and the SG agreed, stating that mere co-worker grumbling, resentment, or even overt hostility to religious practice and expression in the workplace is not part of the inquiry.

Justice Kagan suggested that a business is affected any time an employee is burdened. Groffs counsel replied that employee burdens leading to marginal business impacts are insufficient; there must be concrete evidence of disruption to the operation of the business as a whole. The SG offered that the number of workers, whether the burdens can be diffused, and material changes to employees work conditions are all relevant. Ultimately, this point could hinge on a factual question, as Groffs counsel stated that only one co-worker transferred due to USPSs initial accommodation of Mr. Groff, while the SG stated that one person transferred and another quit.

After nearly two hours of argument, available here, the Court concluded its questioning. A decision is expected by the end of June.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us atinfo@fedsoc.org.

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The Supreme Court Hears Oral Argument in Groff v. DeJoy - The Federalist Society

Former Vice President Mike Pence told a legal group Tuesday in Washington that the next Republican administration should work to curtail the power of executive agencies and pointed to recent legal fights over abortion access.

Restraining and reclaiming the legislative prerogatives of the legislative branch from the administrative state should be one of the most important objectives of the next Republican administration, Pence said at an event put on by the Federalist Society.

The former Indiana governor, widely considered a potential candidate for the GOP presidential nomination but who has made no announcement, also touched on the importance of judicial nominations to that effort.

The Federalist Society and particularly one of its leaders, Leonard Leo, played a leading role in shaping the Trump administrations judicial appointments even helping to create Trumps shortlist of Supreme Court nominees during the 2016 campaign.

Pence said Tuesday he was proud to be part of the administration that seated three Supreme Court justices who last year helped overturn Roe v. Wade, the landmark decision that first legalized abortion in 1973.

More here:

Pence nods to role of judges in conservative push on abortion - Roll Call

As the former vice president and current co-chair of conservative legal think tank the Federalist Society, Leonard Leo sits atop one of the most influential right-wing organizations in the country. The Federalist Society counts at least five sitting U.S. Supreme Court justices among its members, as well as dozens of judges on lower courts.

But Leos influence extends far beyond the Federalist Society and its sway over the Supreme Court.

Over the past two decades, Leo has operated behind the scenes of several well-funded dark money groups political nonprofits that can spend money on political activities but dont have to disclose their donors that have spent tens of millions of dollars to boost conservative candidates in state supreme court elections across the country. According to an investigation published by the website Grid in December, nonprofit political groups connected to Leo have spent at least $31 million in 42 supreme court races across 15 different states since 2010.

The web of political nonprofits and organizations tied to Leo isnt easy to define. On paper, Leos name isnt associated with any of the major dark money groups that have directly spent money on political advocacy or to influence judicial elections. But a 2022 New York Times investigation of Leo revealed the extent of his connections to these groups, explaining how he solicits money from wealthy donors and directs the money to specific political causes through several for-profit and nonprofit groups.

Leo is most closely associated with the Judicial Crisis Network and the 85 Fund, though his name doesnt appear in the tax filings for either of these groups and hes not on their payrolls. According to the same New York Times article, Leo is connected to both groups through several for-profit groups of which he is a full or partial owner. One of the groups is CRC Advisors, a Virginia-based policy incubation group that Leo co-founded in 2020 with communications executive Greg Mueller. The other is BH Group, an LLC that dissolved earlier this year, days after Politico revealed a potential conflict of interest between the company and former Trump senior adviser Kellyanne Conway.

The Judicial Crisis Network, which goes by the name Concord Fund on its tax filings and was previously known as Judicial Confirmation Network, is a 501(c)(4) nonprofit organization considered under tax law a social welfare organization that can engage in political advocacy that advocates for and supports conservative policies and legislation and limited government. Theres no limit as to how much these groups can spend on political activity, so long as its not in direct campaign contributions, and they dont have to disclose their donors.

During Donald Trumps presidency, the Judicial Crisis Network spent millions of dollars in dark money advocating for the Supreme Court confirmations of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Leo is connected to the Judicial Crisis Network through the groups president, Carrie Severino, a former law clerk for Supreme Court Justice Clarence Thomas whom the Daily Beast describes as Leos protg.

Severino is also the president of The 85 Fund, a nonprofit formerly called the Judicial Education Project, which has a similar mission to JCNs. Unlike JCN, though, The 85 Fund is registered as a 501(c)(3) nonprofit, which cant directly spend money on political advocacy. But a 501(c)(3)y can give money to a 501(c)(4) social welfare group, which can directly spend money on political ads as long as its not in coordination with any specific political campaign.

Because of these laws, The 85 Fund doesnt directly spend money on political advocacy. But the groups close relationship to JCN particularly when JCN was spending millions of dollars on advocacy efforts to support Trumps Supreme Court picks raised ethics concerns with Sen. Sheldon Whitehouse (D-RI).

During a confirmation hearing for Barrett on Oct. 13, 2020, Whitehouse condemned the Leo and Severino-backed organizations, saying:

In all cases, theres big anonymous money behind various lanes of activity. One lane of activity is through the conduit of the Federalist Society. Its managed by a guy was managed by a guy named Leonard Leo, and its taken over the selection of judicial nominees. How do we know that to be the case? Because Trump has said so over and over again. His White House counsel said so. So we have an anonymously funded group controlling judicial selection run by this guy Leonard Leo.

Then in another lane, we have again anonymous funders running through something called the Judicial Crisis Network, which is run by Carrie Severino, and its doing PR and campaign ads for Republican judicial nominees. Somebody spent $35 million to influence the makeup of the United States Supreme Court. Tell me thats good.

The JCN and The 85 Fund have paid both of Leos for-profit groups, CRC Advisors and BH Group, tens of millions of dollars since 2016, according to the New York Times. Most of the money going through all of these groups trickled down from a dark money group called the Wellspring Committee, according to the New York Times, which was founded and primarily funded by the Koch Brothers until it dissolved in 2019.

Leo-affiliated dark money found its way into state supreme court races through the Republican State Leadership Committee, a super PAC that focuses its spending on right-wing candidates in state elections. An arm of the RSLC called the Judicial Fairness Initiative focuses on state judicial elections and, according to Grids investigation, spent more than $10 million on state judicial elections between 2014 and 2018. Over the past several election cycles, JCN has been a top donor to the RSLC, giving the group nearly $5.5 million since 2016.

The RSLC has played a pivotal fundraising role in some of the most contentious state supreme court races of the past several years. In the 2021 Pennsylvania Supreme Court race, for example, the group spent $1.2 million in last-minute ads to support Kevin Brobson, the conservative candidate who won the election. Last fall, the RSLC spent $2 million in support of three right-wing justices running for reelection to the Ohio Supreme Court. Most recently, the group spent at least $200,000 to support Dan Kelly, the conservative Wisconsin Supreme Court candidate who lost in April in what was the most expensive state judicial election in U.S. history.

In 2020, Leo founded a new organization called Marble Freedom Trust, which, according to its tax filings, was created to maintain and expand human freedom consistent with the values and ideals set forth in the Declaration of Independence and the Constitution of the United States.

Leos new group flew under the radar until the New York Times reported in August that Barre Seid, the billionaire owner of the electrical products manufacturer Tripp Lite, had given the organization 100% of the shares in the company in a massive $1.6 billion donation the previous year.

Because Marble Freedom Trust is registered as a 501(c)4 nonprofit organization, the group can spend an unlimited amount of money on political advocacy as long as its not given directly to a campaign. Since its founding, Marble Freedom Trust has given at least $229 million to other nonprofits, including $153 million to the conservative legal organization the Rule of Law Trust and $16.5 million to the JCN, according to the New York Times.

Leo told the New York Times in a statement, Its high time for the conservative movement to be among the ranks of George Soros, Hansjrg Wyss, Arabella Advisors and other left-wing philanthropists, going toe-to-toe in the fight to defend our constitution and its ideals.

Published with permission of The American Independent Foundation.

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How Leonard Leo became a conservative power broker in judicial ... - The American Independent

This post was originally published at the Volokh Conspiracy.

Of late, the media has fixated on judicial ethicsfor certain judges, at least. Regrettably, many of these stories fail to put the accusations in context. In some situations, judges took actions that were actually consistent with the rules, or were not-clearly inconsistent with the rules. Still, self-professed experts find fault with unwritten rules. In other cases, judges have made good-faith mistakes based on misreading byzantine codes, and promptly agreed to correct those errors. Some of the allegations border on frivolous, but disfavored judges still get placed under the microscope. Throughout all of this breathless reporting, there has not been a single allegation of an actual conflict of interest between a judge and a party that would result in recusal. To quote Justice Breyer, there has been nothing "underhanded." At most, the claims focus on the nebulous appearance of impropriety standard, which can mean just about anything.

Yet, at present, we may be witnessing serious judicial misconduct that involves an actual conflict of interest. And the Washington Post does not need to fly a swat team of reporters to Amarillo to investigate. I speak, of course, about the Court of Appeals for the Federal Circuit.

Now, I do not have any dog in this fight. I know little about patent law, other than the fact that the Supreme Court routinely reverses the Federal Circuit. Chief Judge Moore was a professor at George Mason, but I never took any classes with her. And, as best as I can recall, I've never even seen Judge Newman. Indeed, she only popped on my radar when I was calculating which judges were eligible to take senior status. Newman was born in 1927, was appointed to the Federal Circuit in 1984, and became eligible for senior status in 1996. But the almost-96-year-old has never taken senior statusand that decision has created problems for her colleagues.

According to Judge Moore, Judge Newman is taking a really long time to resolve casesin some situations, more than a year. (To be frank, Judge Newman is performing at a faster clip than some Biden-appointed judges who are five decades younger.) On the surface, Judge Moore is trying to pressure Judge Newman to take senior status. As a general matter, senior status judges can still hear casesbut those assignments are at the discretion of the Chief Judge. And if Newman were to take senior status, then Moore and her successors could simply prevent Newman from hearing other cases. The remedy being sought is stark: Judge Moore, and her colleagues on the Federal Circuit, are trying to prevent any future cases from being assigned to Judge Newman. Indeed, Judge Moore has already stopped assigning new cases to Newman, who remains an active status judge. If Judge Moore succeeds, Judge Newman would remain an Article III judge in name only. To put it bluntly, Chief Judge Kimberly Moore is engaging in a stealth impeachment of Judge Pauline Newman.

Newman is now represented by the New Civil Liberties Alliance. And NCLA sent a letter to Moore. I realize the facts here are complex, and contested. I'll avoid opining on the merits. Rather, I want to focus on the apparent conflict of interest.

Every federal circuit has a "Judicial Council." That council includes some circuit judges, as well as some district court judges, from that circuit. (The Federal Circuit has no district court judges, so only circuit judges sit on that council.) If a misconduct complaint is filed against a district court judge in a particular circuit, it is understood that circuit court judges from that circuit can impartially resolve the conflict. After all, circuit court judges have to review the decisions of district court judges all the time. Most circuit judges never actually even see district court judgesexcept, as John Roberts once observed, in the D.C. Circuit, where all judges have to share a cafeteria.

However, when a misconduct complaint is filed against a circuit court judge, there will often be a potential conflict, or at least awkwardness. Specifically, circuit judges may not be comfortable to resolve a case against their colleague. They sit together regularly, for decades at a time. Partiality can always be questioned. Therefore, a mechanism exists in which the Chief Judge of the circuit can ask the Chief Justice of the United States to reassign the matter to another circuit. That way, the issue can be impartially adjudicated. This process is not uncommon. Over the past decade, misconduct complaints against circuit judges from the Fifth, Sixth, and Eleventh Circuits were transferred to other circuits.

Yet, Chief Judge Moore has not, to date at least, moved to transfer Newman's case to another circuit. This decision is especially problematic due to the nature of the allegations. Here, we are not dealing with a misconduct complaint from a litigant, or private citizen, who objects to something the judge did on bench, or in public. Rather, the allegations here concern actions that Judge Newman has taken during the opinion writing process. Other than the final date on which an opinion is actually published, the public has no knowledge about how the sausage is made. We do not know when drafts were circulated. We do not know how long judges took to make and revise edits. And we do not know whether complicated legal issues made the process take longer. The only people who have this evidence would be the fellow judges of the circuit, including Judge Moore, and court staff. Yet, Judge Moore purports to decide whether there was misconduct. She is the fact-witness, the fact-finder, and the adjudicator. There is an apparent conflict of interest.

Finally, there is another issue lurking under the surface. If Chief Judge Moore succeeds in pushing her colleague to take senior status, a new vacancy would open up for the Biden Administration. The patent bar is, from what I've heard, very clubby. And there is no blue slip delay. I'm sure there is a list of attorneys waiting to fill that seat. Judge Moore, by pushing out her colleague, is opening a seat for someone else. Judges should have no role in picking their successors. Nor should judges have a role in creating vacancies on their court, in which more-congenial nominees can assume the seat. And I don't put much stock in the fact that Moore is a Republican-appointee, and we currently have a Democratic president. Judge Newman has suggested that this misconduct process is in retaliation for her disfavored views on patent law.

Chief Judge Kimberly Moore cannot be the judge, jury, and executioner of Judge Newman.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us atinfo@fedsoc.org.

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The Stealth Impeachment of Judge Newman in the Federal Circuit - The Federalist Society

Mike Curtin| Guest Columnist

Each state has its distinct political heritage.

The constitutional and governmental legacies of our 50 states differ in many ways, large and small. Citizens of our states take pride in their differences.

Most of the pioneers who carved Ohio from the Northwest Territory, at least those taking part in public affairs, identified with the Democratic-Republican Party of Thomas Jefferson.

Editorial: Hypocrisy thrives with Ohio Republicans, LaRose

They were farmers, frontiersmen and craftsmen who distrusted strong central government. They opposed the Federalists, whom they saw as aristocratic, elitist and controlled by powerful financial interests.

Ohios founders were plain folk who resented the heavy hand of Gen. Arthur St. Clair, governor of the Territory of Ohio, who with fellow Federalists opposed statehood for Ohio.

In 1801, when Jefferson was elected president, our states founders saw their opening, enlisted his help to dump St. Clair, and went about business to create the 17th state.

In 1802 at Ohios first constitutional convention in Chillicothe, 26 of the 35 delegates elected from nine counties were Democratic-Republicans. Seven were Federalists. Political affiliations of two remain unknown.

Ohios first seven governors were Democratic-Republicans. Both of Ohios constitutions, products of 1802 and 1851, were infused with Jeffersonian ideals of trusting the people more than elected officials.

The 1802 Constitution made the governor a figurehead. State lawmakers were put on tight leashes one-year terms for representatives, two-year terms for senators. In 1851, House terms were lengthened to two years. Not until 1956, more than a century later, were Senate terms lengthened to four years.

The suspicion Ohios founders held for centralized authority became engrained in the states political culture and endured. The 1851 Constitution established a debt limit of $750,000 absent a public vote. It remains.

The 1851 Constitution also adopted the Jeffersonian idea of requiring that every 20 years Ohioans must vote on whether to hold another state constitutional convention to revise, alter or amend the document. Ohioans vote again on this question in 2032.

The Bill of Rights in our 1851 Constitution proclaims the people have the right to alter, reform or abolish their state government whenever they may deem it necessary.

Throughout Ohios 220-year experiment in democracy, the peoples determination to steer their government never was stronger than in the early 20th century. As Ohio was transformed into an industrial dynamo, monopolistic tycoons bought big-city political bosses and their hand-picked officeholders. Ohios Statehouse became one of the most corrupt in the nation.

Crookedness spawned reform, which found its expression in the 1912 constitutional convention. No reform was more cleansing than voter adoption, by a landslide of 57.5%, of the initiative and referendum.

In 1912, Nebraska and Ohio became the 12th and 13th states to embrace constitutional direct democracy. Ohios constitutional initiative is the crown jewel of our states political heritage. As intended, it reminds elected officials who ultimately is in charge who owns the constitution.

August special election?: Ohio Senate Republicans OK plan to make it harder to change constitution

Now, some Statehouse politicians plot to embezzle that inheritance. They devise an unprecedented August election, hoping to catch most Ohioans sleeping, while getting enough of their supporters to the polls to pull off the heist.

The plan would cripple Ohioans ability to effectively use their 111-year-old right to initiate amendments, by doubling signature-gathering quotas from 44 counties to all 88, and by requiring all future amendments to win by a 60% ratio.

In justifying their plan, Secretary of State Frank LaRose and state Rep. Brian Stewart, R-Ashville, continually note that 32 states dont permit citizen-led, constitutional initiatives.

Unaware of Ohio history, their recitation always includes New England states where the Federalist Party ran strongest and left lasting marks on their political cultures.

LaRose and Stewart could not sound a more discordant note. They could not demonstrate a more fundamental misunderstanding of Ohios political heritage.

Ohioans never have shown any interest in emulating the political cultures of New York, Connecticut or Maryland. For two centuries, theyve identified much more with fellow pioneers who opened up the West, insisting on popular sovereignty.

Mike Curtin is a former editor and associate publisher of the Columbus Dispatch, and a former two-term state representative who served on the Ohio Constitutional Modernization Commission.

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LaRose, Stewart forget Ohio's history as they seek to upend ... - Canton Repository