Will Judge Kavanaugh Be Confirmed and What Type of Justice Will He Be?

Next month Judge Kavanaugh confirmation hearings will start and you can expect political bickering and argument from both sides of the aisle. This is President Trump's second appointment and because Judge Kavanaugh will, if confirmed, be replacing a moderate, this appointment will likely swing the court far to the right. 

But, just who is Judge Kavanaugh? We know he worked in the Bush Administration and on the Kenneth Star Report and he sits on the D.C. Circuit. Senator Schumer has been widely quoted as stating that the best predictor of how he will rule as a Supreme Court Justice is by examining how he ruled while sitting on the D.C. Circuit. I disagree. I was quoted in theAugust 19, 2018, Washington Times as stating:

“He is a prolific writer and not afraid to dissent from the majority,” said Mitchell Rubinstein, a New York based lawyer...Mr. Rubinstein said those rulings suggest the judge is a strong supporter of national security but has been bound by precedent, so dissecting his rulings won’t necessarily predict opinions if he is confirmed to the high court.

It is, therefore, much more important to examine Judge Kavanaugh's non-judicial writings. Thus, in my view, his legal scholarship and his speeches are much more important than what he said in a judicial opinion, whether it be a majority or dissenting opinion-though those opinions do have some value. I just do not believe that they are as important as Senator Schumer believes that they are. 

As for whether he will be confirmed, of course, he will. It is all about the numbers. 

Is The Janus Ruling Retroactive?

The Supreme Court recently held that an Illinois agency fee statute which mandated that non-union members pay an amount equivalent to union dues violated the First Amendment. Janus v. AFSCME, 585 U.S. ___(June 27, 2018).  Query whether this case is retroactive, i.e., can agency fee payers seek to collect fees they previously paid? The Court did not discuss this issue.

The Supreme Court has, however, repeatedly recognized:

Elementary considerations of fairness dictate that individuals
should have an opportunity to know what the law is and
to conform their conduct accordingly; settled expectations
should not be lightly disrupted. For that reason, the principle
that the legal effect of conduct should ordinarily be
assessed under the law that existed when the conduct took
place has timeless and universal appeal.  Landgraf v. USI Fim Prods.511 U.S. 244, 265-266 (1994), quoting, Kaiser Aluminum and Chemical Corp. v. Bonjorno, 494 U.S. 827, 855 (Scalia, concurring).

There are also, however, decisions that have been found to be retroactive. See, Kay, Retroactivity and Prospectivity of Judgements in American Law, 62 Am. J. Comp. L. 37 (2014) (discussing case law). 

I was recently interviewed by the Washington Times about the issue and was quoted as explaining:

“In my view, it’s very unlikely that there will be any retroactivity with respect to this decision, and the reason for that is the Janus decision overruled 41-year-old precedent,” said Mitchell Rubinstein, a New York-based lawyer. “It changed existing law.”  Alex Swoyer, In Wake of Supreme Court's anti-union ruling, non-members seek repayment of dues, Washington Times, August 12, 2018.

If the ruling is retroactive then how far back can courts go? The answer is that it depends on the applicable statute of limitations. Most of these cases are brought as 42 U.S.C. 1983 lawsuits which, in states such as New York, have a 3 year statute of limitations.

A finding of retroactivity can be devasting to some unions. That is why it is likely that most unions will seek to avoid litigation and settle cases involving individual union members or involving small numbers of employees. Class action lawsuits, however, may be a different story and only time can tell what will ultimately happen.