Latest news with #EugeneVolokh
CNN
a day ago
- Politics
- CNN
How a Supreme Court decision backing the NRA is thwarting Trump's retribution campaign
As Harvard University, elite law firms and perceived political enemies of President Donald Trump fight back against his efforts to use government power to punish them, they're winning thanks in part to the National Rifle Association. Last May, the Supreme Court unanimously sided with the gun rights group in a First Amendment case concerning a New York official's alleged efforts to pressure insurance companies in the state to sever ties with the group following the deadly 2018 school shooting in Parkland, Florida. A government official, liberal Justice Sonia Sotomayor wrote for the nine, 'cannot … use the power of the State to punish or suppress disfavored expression.' A year later, the court's decision in National Rifle Association of America v. Vullo has been cited repeatedly by federal judges in rulings striking down a series of executive orders that targeted law firms. Lawyers representing Harvard, faculty at Columbia University and others are also leaning on the decision in cases challenging Trump's attacks on them. 'Going into court with a decision that is freshly minted, that clearly reflects the unanimous views of the currently sitting Supreme Court justices, is a very powerful tool,' said Eugene Volokh, a conservative First Amendment expert who represented the NRA in the 2024 case. For free speech advocates, the application of the NRA decision in cases pushing back against Trump's retribution campaign is a welcome sign that lower courts are applying key First Amendment principles equally, particularly in politically fraught disputes. In the NRA case, the group claimed that Maria Vullo, the former superintendent of the New York State Department of Financial Services, had threatened enforcement actions against the insurance firms if they failed to comply with her demands to help with the campaign against gun groups. The NRA's claims centered around a meeting Vullo had with an insurance market in 2018 in which the group says she offered to not prosecute other violations as long as the company helped with her campaign. 'The great hope of a principled application of the First Amendment is that it protects everybody,' said Alex Abdo, the litigation director of the Knight First Amendment Institute. 'Some people have criticized free speech advocates as being naive for hoping that'll be the case, but hopefully that's what we're seeing now,' he added. 'We're seeing courts apply that principle where the politics are very different than the NRA case.' The impact of Vullo can be seen most clearly in the cases challenging Trump's attempts to use executive power to exact revenge on law firms that have employed his perceived political enemies or represented clients who have challenged his initiatives. A central pillar of Trump's retribution crusade has been to pressure firms to bend to his political will, including through issuing executive orders targeting four major law firms: Perkins Coie, Jenner & Block, WilmerHale and Susman Godfrey. Among other things, the orders denied the firms' attorneys access to federal buildings, retaliated against their clients with government contracts and suspended security clearances for lawyers at the firms. (Other firms were hit with similar executive orders but they haven't taken Trump to court over them.) The organizations individually sued the administration over the orders and the three judges overseeing the Perkins Coie, WilmerHale and Jenner & Block suits have all issued rulings permanently blocking enforcement of the edicts. (The Susman case is still pending.) Across more than 200-pages of writing, the judges – all sitting at the federal trial-level court in Washington, DC – cited Vullo 30 times to conclude that the orders were unconstitutional because they sought to punish the firms over their legal work. The judges all lifted Sotomayor's line about using 'the power of the State to punish or suppress disfavored expression,' while also seizing on other language in her opinion to buttress their own decisions. Two of them – US district judges Beryl Howell, an appointee of former President Barack Obama, and Richard Leon, who was named to the bench by former President George W. Bush – incorporated Sotomayor's statement that government discrimination based on a speaker's viewpoint 'is uniquely harmful to a free and democratic society.' The third judge, John Bates, said Vullo and an earlier Supreme Court case dealing with impermissible government coercion 'govern – and defeat' the administration's arguments in defense of a section of the Jenner & Block order that sought to end all contractual relationships that might have allowed taxpayer dollars to flow to the firm. 'Executive Order 14246 does precisely what the Supreme Court said just last year is forbidden: it engages in 'coercion against a third party to achieve the suppression of disfavored speech,'' wrote Bates, who was also appointed by Bush, in his May 23 ruling. For its part, the Justice Department has tried to draw a distinction between what the executive orders called for and the conduct rejected by the high court in Vullo. They told the three judges in written arguments that the orders at issue did not carry the 'force of the powers exhibited in Vullo' by the New York official. Will Creeley, the legal director at the Foundation for Individual Rights in Education, said the rulings underscore how 'Vullo has proved its utility almost immediately.' 'It is extremely useful to remind judges and government actors alike that just last year, the court warned against the kind of shakedowns and turns of the screw that we're now seeing from the administration,' he said. Justice Department lawyers have not yet appealed any of the three rulings issued last month. CNN has reached out to the department for comment. In separate cases brought in the DC courthouse and elsewhere, Trump's foes have leaned on Vullo as they've pressed judges to intervene in high-stakes disputes with the president. Among them is Mark Zaid, a prominent national security lawyer who has drawn Trump's ire for his representation of whistleblowers. Earlier this year, Trump yanked Zaid's security clearance, a decision, the attorney said in a lawsuit, that undermines his ability to 'zealously advocate on (his clients') behalf in the national security arena.' In court papers, Zaid's attorneys argued that the president's decision was a 'retaliatory directive,' invoking language from the Vullo decision to argue that the move violated his First Amendment rights. ''Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors,'' they wrote, quoting from the 2024 ruling. 'And yet that is exactly what Defendants do here.' Timothy Zick, a constitutional law professor at William & Mary Law School, said the executive orders targeting private entities or individuals 'have relied heavily on pressure, intimidation, and the threat of adverse action to punish or suppress speakers' views and discourage others from engaging with regulated targets.' 'The unanimous holding in Vullo is tailor-made for litigants seeking to push back against the administration's coercive strategy,' Zick added. That notion was not lost on lawyers representing Harvard and faculty at Columbia University in several cases challenging Trump's attacks on the elite schools, including one brought by Harvard challenging Trump's efforts to ban the school from hosting international students. A federal judge has so far halted those efforts. In a separate case brought by Harvard over the administration's decision to freeze billions of dollars in federal funding for the nation's oldest university, the school's attorneys on Monday told a judge that Trump's decision to target it because of 'alleged antisemitism and ideological bias at Harvard' clearly ran afoul of the high court's decision last year. 'Although any governmental retaliation based on protected speech is an affront to the First Amendment, the retaliation here was especially unconstitutional because it was based on Harvard's 'particular views' – the balance of speech on its campus and its refusal to accede to the Government's unlawful demands,' the attorneys wrote.
USA Today
5 days ago
- General
- USA Today
How the Supreme Court could still reshape religious liberty with decisions in two cases
How the Supreme Court could still reshape religious liberty with decisions in two cases Show Caption Hide Caption SCOTUS takes up case on LGBTQ+, inclusive books in schools Demonstrators on both sides protested as the Supreme Court heard a school district's case on parents' rights and LGBTQ+ books. The U.S. Supreme Court deadlocked 4-4 on May 22, blocking religious charter schools. But the court could still reshape religious liberty in the United States with decisions in two other cases. One deals with whether parents in Maryland can opt-out of curriculum they find objectionable on religious grounds. The other centers on a Wisconsin case and whether a Catholic charity must contribute to the state's unemployment system. The U.S. Supreme Court's May 22 deadlock prevented the establishment of the nation's first religious charter school. A decision allowing such an institution would have dramatically overhauled long-standing norms about public education and religious freedom in the United States. But decisions in two other cases centered on religion and the First Amendment are still ahead, and experts say those, too, could reshape what religious liberty means across the nation. The cases – one dealing with public school curriculum and the other with tax exemptions for religious organizations – are "very significant" for different reasons, but all are coming before justices amid a broader trend of the court intervening to protect the free exercise of religion, said Daniel Conkle, a professor of law emeritus at Indiana University's Maurer School of Law. Plus, there's been an 'almost complete ideological switch on the court' in recent years, said Eugene Volokh, a professor of law emeritus at the UCLA School of Law. He and other experts attributed the shift to a conservative-majority that currently includes three Trump appointees. The court now tends to have a 'very minimalist view of the establishment clause and a very robust view of the free exercise clause,' said Erwin Chemerinsky, a law professor and dean of Berkeley Law. In the First Amendment, one clause prohibits the government from establishing a religion and the other bans the government from interfering with citizens' free practice of religion as long as, according to a federal court analysis, "the practice does not run afoul of 'public morals' or a 'compelling' governmental interest." The court's rulings in the remaining religious liberty cases will indicate whether that trend will continue. Maryland parents fight for right to opt kids out of LGBTQ school materials The school case surrounds parents' objections in Maryland to books with LBGTQ+ characters that Montgomery County Public Schools, which is based in the Washington metro area, added to its curriculum in 2022. Though the district initially accommodated parents who did not want their children to be exposed to such materials, it later prohibited the opt-outs. Parents sued the district, lost their case and ultimately appealed to the Supreme Court, which heard oral arguments in April. Volokh, who co-signed an amicus brief with Yale law professor Justin Driver arguing against a constitutional right to parental opt-outs, said it is 'going to be potentially a very important case.' A Supreme Court ruling in favor of the parents could open the floodgates to countless other religious objections to public education materials, which Duke law professor Richard Katskee said stands to be "incredibly disruptive." 'Anybody who's run a school knows you can't provide individualized, tailored instruction to every kid based on that kid's parents' religious viewpoints,' Katskee said. There would also be logistical questions to address, including who's responsible for supervising students if they are made to leave their classroom during certain lessons and how to select alternative material that is inoffensive to their parents. Conkle pointed to the Supreme Court's 1972 ruling in Wisconsin v. Yoder, which found that a state law requiring Amish parents to send their children to public school until at least the age of 16 violated the parents' free exercise right. Though the Maryland case also revolves around the extent to which religious parents can shape their children's education in a public school setting, Conkle said a decision in favor of the parents could create a 'significantly different and greater administrative burden' than the ruling in Yoder did. There would be a greater risk of "administrative headaches" in granting parents the right to opt their children out of any element of public school curriculum they find objectionable, he said, than there is in allowing them to simply opt out of the public school system altogether. 'Can public schools really function in that kind of cafeteria-line way?' Chemerinsky said. Justice Elena Kagan questioned the broad scope of opt-outs during oral arguments. She asked what the implications would be if the court affirmed a constitutional right to effectively "opt out for anything" in public education. Lawyer Eric Baxter, who is representing the petitioners in the case, was skeptical that such a ruling would lead to countless lawsuits. "We just don't find these kinds of cases or these kinds of burdens where parents are bringing extreme examples," he said. "You know, parents with kids really don't have a lot of time to be suing the school board, and they're looking for a reasonable compromise." An amicus brief filed by Protect the First Foundation and other groups argued in support of an opt-out right, saying parents "live in fear that the religious, moral or ethical principles they attempt to instill in their children at home will simply be unwound at school." A brief from groups including the Church of Jesus Christ of Latter-day Saints and the Southern Baptist Convention's Ethics and Religious Liberty Commission said public schools notifying parents about new reading material and allowing them to opt their children out were "modest accommodations." They argued the district had violated the parents' right to free exercise of their religion, saying that the petitioners have a "religious duty to be their children's primary guardians in matters concerning marriage, sexuality and gender." Wisconsin unemployment tax case could be 'quite important' The tax exemption case centers on whether a Catholic charity operated by a diocese in Wisconsin is required to contribute to the state's unemployment system. The state's supreme court previously ruled that Catholic Charities, operated by the Diocese of Superior in northwest Wisconsin, was not exempt from paying an unemployment tax like the larger Catholic Church is. Religious organizations do not have to pay such taxes, but the state found the charity's work was too secular in nature to warrant a similar exemption. Justices across the political spectrum "appeared sympathetic" to the notion that that was effectively religious discrimination against Catholic Charities, SCOTUSblog reported. The issue is 'conceptually quite important,' Volokh said, though its application would depend on states' tax rules and may not have implications as far-reaching as the Maryland case. Most states, however, have laws similar to Wisconsin's that exempt church-controlled organizations "operated primarily for religious purposes" from contributing to unemployment programs, USA TODAY previously reported. The extent to which the charity's work could be considered religious was debated among the justices during oral arguments in March. Justice Brett Kavanaugh said that the law appears to emphasize "why they do it, not what they do," while Justice Ketanji Brown Jackson said what matters is actions, not intentions. "There are lots of hard questions in this area ... but I thought it was pretty fundamental that we don't treat some religions better than other religions," Kagan said. Impact of cases ultimately depends on how court's rulings are written Meanwhile, experts agreed the court's deadlock in the Oklahoma case leaves room for the question of religious charter schools to return to the court's docket in the future. Chemerinsky said it is "hard to overstate the importance of this issue," which epitomizes the court's shift to a wider application of the free exercise clause. "I think the only conclusion to be drawn is that when the issue comes back to the court, it will all depend on Justice Barrett's views," he said, referencing Amy Coney Barrett's recusal from the case. But when it comes to the two other religion cases currently before the court, experts said their impact will ultimately depend on how the rulings are written. 'The broader the rulings, the more destructive they are to public education and to religious freedom for us all,' Katskee said. Contributing: Maureen Groppe USA TODAY'S coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners. Funders do not provide editorial input.
