FedSoc Blog

Last month, The Federalist Society sponsored a debate at Harvard Law School between Professors Eugene Volokh and Noah Feldman on the topic of slippery slopes.  Harvard has now posted a video of the event, which drew an audience of over 200. 

The inspiration for the debate was "Mechanisms of the Slippery Slope," a paper in which Volokh analyzed the common metaphor, including its proper and improper uses.  Volokh told the crowd:

A classic slippery slope argument is, "If you take Step A, you will soon find yourself taking step B, and we can all agree that B would be bad. We can avoid the bottom of the slope by avoiding the first step." When people say that, they’re making an exaggeration, and that gives slippery slope arguments a bad name...

Slippery slope arguments are actually about looking at public policy in a dynamic way, and recognizing that every decision changes the political and economic conditions under which future decisions are made.

In his response, Feldman distinguished traditional conservatives, who he accept the status quo and are afraid of change, from contermporary conservatives, who use the language of cost-benefit analysis. He claimed that slippery slope arguments properly belong to traditional conservatism:

The one word that captures traditional conservatism is ‘cautious'... By contrast, contemporary conservatism has no a priori commitment to caution, just to figuring out what the most rational way to do something is. What’s striking about that in historical terms is that it’s close to the position of the Enlightenment, which is that the idea that just because something has happened previously isn’t a reason we should care about it.

In the WSJ, Michael McConnell draws attention to an upcoming Supreme Court case regarding the "ministerial exception" in employment discrimination law.  For 40 years, lower courts have held that the First Amendment forbids the government from deciding who may be a religious minister--despite the fact that federal statutes outlawing employment discrimination based on race, sex, age, and disability contain no express exception. 

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court will address the issue for the first time.  The particular question at hand is: Who counts as a minister? 

The facts are that a commissioned minister who taught secular subjects and led chapel devotions at a small Lutheran elementary school was replaced by a substitute after she fell ill.  Wanting to return to the classroom in the middle of the year, she threatened to sue the school, which led to a falling out in which the congregation voted to withdraw her "call" to the ministry, thus making her ineligible for the job. She subsequently sued the school under the Americans with Disabilities Act with the support of the Equal Employment Opportunity Commission.

While the Supreme Court has been asked to determine under what circumstances the ministerial exception ought to apply, McConnell is shocked to find that:

the Obama Justice Department has now asked the court to disavow the ministerial exception altogether. This would mean that, in every future case, a court--and not the church--would decide whether the church's reasons for firing or not hiring a minister were good enough.

In response, McConnell notes:

Is a secular court to decide, for example, whether confining Catholic priests or Orthodox rabbis to males is a correct interpretation of scripture, or merely a vestige of outmoded and stereotypical bias?

James Madison famously declared that the civil magistrate is not a "competent Judge of Religious truth."

Contrary to the DOJ's position, McConnell quotes a decision Justice Sotomayor wrote as a lower court judge:

"Federal court entanglement in matters as fundamental as a religious institution's selection or dismissal of its spiritual leaders risks an unconstitutional trespass on the most spiritually intimate grounds of a religious community's existence."

The Washington Legal Foundation is trumpeting a major victory against the Envirtonmental Protection Agency in a case regarding malicious prosecution.  The U.S. District Court for the Western District of Louisiana ordered the U.S. to pay $1.7 million to Hubert Vidrine, WLF's client, based on findings that it maliciously prosecuted him for alleged criminal violations of the Resource Conservation and Recovery Act (RCRA), the federal environmental statute that governs the storage and disposal of hazardous wastes. 

The judge found that the EPA did not even have probable cause to believe that Vidrine violated the law.  In addition, the lead EPA agent in the case was indicted for perjury and obstruction of justice.  Yesterday, that agent plead guilty to those charges.

The decision in Vidrine v. United States should resonate with those who are concerned that the federal regulation of business conduct is being overcriminizalied.  For a collection of Federalist Society material on the issue, both pro and con, see here.  Also of interest is John S. Baker, Jr.'s white paper "Measuring the Explosive Growth of Federal Crime Legislation."

Gallup just released the results of its annual governance poll, which surveys public opinion regarding the Supreme Court, among other things.  The poll found that:

Americans' approval of the institution is now 46%, a drop of 5 percentage points in the last year and 15 points in the last two years. Since 2000, Gallup has recorded only one approval rating of the high court that is lower than today's: 42% in June 2005.

Gallup speculates that the relatively low approval rating could be due more to a general decline in trust in government than anything the court has done.

Perhaps more interestingly, the poll found that, percentage-wise, more Republicans see the court as "too liberal" than Democrats see it as "too conservative."  Likewise, Independents were more likely to view the court as "too liberal" than "too conservative."

The latest issue of Class Action Watch, the Federalist Society newsletter surveying the recent trends and cases in class action litigation, is now online. It includes articles on two Supreme Court cases decided last Term, AT&T Mobility v. Concepcion and Smith v. Bayer Corp., on overtime exemption litigation in the pharmaceutical industry, and on a new class action system in Mexico.

Check out the full issue here.

• Did the Supreme Court Just Kill the Class Action? by Brian T. Fitzpatrick
• Overtime Exemption Litigation Targets the Pharmaceutical Industry by Brent D. Knight & Michelle G. Marks
• Piecing Together the Puzzle of Mexican Class Actions by William J. Crampton & Silvia Kim
• Supreme Court Narrowly Interprets the Relitigation Exception of the Anti-Injunction Act by J.B. Tarter