What Does the Death of Justice Scalia Mean for Business?

Tuesday, February 16th, 2016

I looked at the docket of cases that the Supreme Court accepted for decision during the current term, which began in October and will conclude in late spring.

Here are cases that matter to business where Justice Scalia could have been the swing vote, but the case was not decided before his death:

• Whether the states can challenge in court President Obama’s “deferred action” program for illegal aliens, and whether this program violates the President’s Constitutional obligation to “take care” that the laws are faithfully executed. This program would grant work permits to millions of illegal aliens. This case could affect the composition of the legal workforce.

• Whether using race preferences in college admissions is constitutional. This could affect the legality of workplace “diversity” hiring programs. Justice Kagan recused herself from this case, so it could be decided by just seven justices.

• Whether the Constitution and the federal Religious Freedom Restoration Act allow the government to force objecting religious nonprofit organizations to violate their beliefs by forcing them to offer health plans with coverage for contraceptives, abortifacients, and sterilization.

• Whether the First Amendment prohibits requiring individual public employees to opt out of paying union dues used for the political activities of their union or, instead, whether the Constitution requires that the union get the approval of individual public employees to opt into use union dues for political speech. The case could give public employees the right to decline to pay any union dues, even for collective bargaining representation.

• How long a former employee can wait before suing his or her employer for wrongful discrimination after job termination.

• Whether an employer can recover its attorneys’ fees from the Equal Employment Opportunity Commission when the EEOC loses a case because of its total failure to satisfy its pre-suit investigation, reasonable cause, and conciliation obligations.

• The ability to sue in federal court when the United States Army Corps of Engineers determines that the property at issue contains “waters of the United States,” which are protected by the Clean Water Act. This raises the ability to challenge the federal government when it declares something to be a wetlands.

• Whether spouses who serve as guarantors on loans to their marriage partners can sue for gender discrimination under the federal Equal Credit Opportunity Act.

• Whether Congress has the power to give someone the ability to sue for violation of a federal statute when that person hasn’t suffered any concrete harm.

• Whether a class action lawsuit can be maintained for a purported violation of the federal Fair Labor Standards Act when there are substantial differences in the situations of the workers in that class.

• Whether the First Amendment prohibits demoting a public employee based on a supervisor’s perception that the employee supports a political candidate.

• Whether the federal Racketeer Influenced and Corrupt Organizations Act can be used to attack conduct that occurs outside of the United States.

• Whether certain kinds of workers are eligible for overtime pay under the Fair Labor Standards Act.

• Whether excluding churches from participating in a secular aid program violates the Constitution’s protection for the free exercise of religion and the Equal Protection Clause, even where a church would not be using the program for religious indoctrination.

• What counts as a personal benefit necessary to establish insider trading of a publicly held stock?

While Justice Scalia was a judicial conservative, he didn’t rule for businesses over individuals out of any prejudice toward business.

His driving principle was to apply statutes as written, and to scrutinize the text of them to resolve ambiguities rather than rely on policy arguments to reach resolution.

Likewise, when interpreting the Constitution, he looked to the original intent of the Constitutional provision rather than contemporary policy views.

It was that focus on original intent and text that drove his decisions, not any bias toward business. Sometimes he voted against business interests, when his principles led to that result.

His left-wing critics wanted judicial activism to advance their political goals, which he activism he declined to provide.

My Personal Note About Justice Scalia: During the 1985-86 school year, when I was a first year law student at U.Va., Justice Scalia was the speaker at a luncheon hosted by our law school’s chapter of the Federalist Society. Somehow I was permitted to sit at his table during the lunch.

At the time, he was a judge on the D.C. Circuit Court of Appeals. His topic of the day was Originalism – interpreting the Constitution by its original meaning in order to avoid using one’s political views to decide cases.

I instigated a friendly argument with them about whether it was better, instead, to simply use the literal meaning of the Constitution rather than trying to figure out the intent of the Framers of the Constitution. In retrospect, while he argued his position, he treated me with kid gloves when he could have smacked me down easily. He was kind to us legal greenhorns, in addition to being an intellectually curious and stimulating jurist and speaker.

Written by John B. Farmer
On February 15, 2016

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