The Upside-Down Treatment of Religious Exceptions Cases in the Supreme Court

MICHAEL C. DORF

Cornell law professor Michael C. Dorf comments on the U.S. Supreme Court’s decision last week to reject an emergency application from the State of Alabama to lift a stay on the execution of Willie B. Smith III. Professor Dorf observes the Court’s unusual alignment of votes in the decision and argues that, particularly as reflected by the recent COVID-19 decisions, the liberal and conservative Justices have essentially swapped places from the seminal 1990 case Employment Division v. Smith, which established that the First Amendment does not guarantee a right to exceptions from neutral laws of general applicability.

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Chambers v. District of Columbia

Docket: 19-7098

Opinion Date: February 19, 2021

Judge: Per Curiam

Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

The DC Circuit affirmed the district court's grant of summary judgment to the District in an action brought under Title VII of the Civil Rights Act of 1964 by plaintiff, alleging that OAG's denial of her multiple requests for a lateral transfer to a different unit within OAG constituted unlawful sex discrimination and unlawful retaliation for filing discriminatory charges with the EEOC. The court agreed with the district court that plaintiff failed to establish that she suffered an adverse employment action. In this case, no reasonable jury could conclude that plaintiff suffered materially adverse consequences associated with the denial of her lateral transfer requests for purposes of her discrimination or retaliation claim.

United States v. Scurry

Docket: 18-3067

Opinion Date: February 19, 2021

Judge: Per Curiam

Areas of Law: Criminal Law, Legal Ethics

In an action challenging the voluntary and intelligent nature of appellant's plea as to certain drug and drug-related offenses, the DC Circuit concluded that the appointment of counsel was not in the interest of justice under the Criminal Justice Act given her unwaived and material conflict of interest. The court explained that, under controlling Supreme Court precedent, the only legally viable avenue for challenging the plea apparent on the record would have been for counsel to argue that her own and/or her husband's representation of appellant in the decision to plead guilty was constitutionally ineffective. In this case, the fact that counsel chose to pursue a challenge to appellant's guilty plea that was plainly foreclosed by precedent rather than the only potentially viable legal avenue recognized by case law—an ineffective assistance of counsel claim against herself and her spouse—presents an untenable direct and plain conflict of interest between attorney and client. Furthermore, counsel, when she re-inserted herself into appellant's case to file this Section 2255 motion, did not obtain any waiver of the conflict—even assuming a conflict like this is waivable at all. The court explained that counsel never advised appellant that, to be legally viable, a challenge to the voluntary and intelligent nature of his plea based on the suppression of the other wiretaps would require him to level an ineffective assistance of counsel claim aimed at her and/or her husband. Therefore, the court concluded that the conflict of interest persisted throughout and permeated counsel's representation of petitioner in these Section 2255 proceedings. The court reversed and remanded for the appointment of conflict-free counsel to assist with appellant's Section 2255 petition.

International Transmission Co. v. Federal Energy Regulatory Commission

Docket: 19-1190

Opinion Date: February 19, 2021

Judge: Cornelia Thayer Livingston Pillard

Areas of Law: Energy, Oil & Gas Law, Government & Administrative Law

The DC Circuit denied a petition for review brought by three electrical transmission companies (Transcos), subsidiaries of the same parent company, challenging FERC's decision to reduce the enhanced return on equity FERC had previously authorized them to collect from ratepayers due to their status as standalone transmission companies. The court rejected ITC's contention that FERC arbitrarily and capriciously departed from precedent establishing a particular methodology to assess Transco independence. The court explained that FERC, consistent with its stated intent in Order No. 679, never established any definitive methodology, let alone the one ITC claims it did. In this case, FERC has consistently applied a case-by-case approach to determining Transco independence, considering ownership and business structure as part of that inquiry since it first granted a Transco adder in 2003. When the adder was codified in 2006, Order No. 679 built on prior practice by identifying certain criteria that ITC now mistakenly claims constitute "a new corporate-structure test." The court also rejected ITC's contention that FERC exceeded its statutory authority by reducing ITC's Transco adders without first finding the adders to be unjust and unreasonable. Rather, the court concluded that there was substantial evidence to support FERC’s finding that the merger had reduced ITC's independence, thereby rendering the existing adders unjust and unreasonable.

Leggett & Platt, Inc. v. National Labor Relations Board

Docket: 20-1060

Opinion Date: February 19, 2021

Judge: Sentelle

Areas of Law: Labor & Employment Law

Employer petitioned for review of NLRB orders which concluded, among other things, that employer had committed an unfair labor practice (ULP) by withdrawing recognition from its employees' union based on a petition signed by a majority of the bargaining unit members seeking a withdrawal of recognition. The Board considered the withdrawal of recognition unfair because of a later petition circulated by the union to the opposite effect, which the union had not disclosed to the employer at the time of the withdrawal of recognition. The DC Circuit concluded that the Board's refusal to retroactively apply Johnson Controls, 368 NLRB No. 20, a Board precedent ruling that employers engaging in the same conduct under similar circumstances do not commit unfair labor practices, was arbitrary and capricious. The court explained that the Board has clearly departed from its prior established precedent by not applying the Johnson Controls standard retroactively to this case—Johnson Controls and this case are factually indistinguishable. Accordingly, the court granted the employer's petition and denied the Board's cross-application for enforcement of its orders. Finally, the court concluded that substantial evidence supports the Board's finding that the Human Resources Manager for employer did not direct a newly-hired bargaining unit employee to another unit employee to have the new-hire sign the petition. Accordingly, the court denied the petition as to this issue.