NEWS

By Patrick Gregory

Judge Steven M. Colloton’s votes in headline-grabbing controversies involving reproductive health, religion and speech will likely take center stage if he’s nominated to the U.S. Supreme Court.

Conservative and progressive court watchers have described him as pro-business.

Colloton is on a short list of 21 possible high court nominees to fill the vacancy left by the death of Justice Antonin Scalia, who died last year. President-elect Donald Trump has committed to choosing someone from this list.

Trump has narrowed the field to around a half-dozen finalists, which includes Colloton, a Jan. 3 Politico story reports.

1) ACA, Reproductive Health

Colloton joined two Eighth Circuit rulings that may raise concerns among Democrats about his positions on reproductive health.

He was on the Eighth Circuit panel that split with seven other circuits concerning religious objections to the Affordable Care Act’s “contraceptive mandate” in a pair of same-day decisions, Sharpe Holdings, Inc. v. HHS, 801 F.3d 927 (8th Cir. 2015), and Dordt Coll. v. Burwell, 801 F.3d 946 (8th Cir. 2015) (84 U.S.L.W. 370, 9/22/15).

There, the Eighth Circuit ruled that religious nonprofits couldn’t be required to either provide contraception under the ACA or to participate in a religious accommodation process.

It found the requirements impermissibly burdened the nonprofits’ exercise of religion under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb.

The Supreme Court vacated those rulings after it sent a related dispute back to the lower courts in Zubik v. Burwell, 84 U.S.L.W. 4257, 2016 BL 154895 (U.S. May 16, 2016) (84 U.S.L.W. 1687, 5/19/16).

Colloton also voted to uphold a South Dakota law requiring physicians to provide women seeking abortions with written disclosure of an increased suicide risk, in Planned Parenthood Minn. v. Rounds, 686 F.3d 889 (8th Cir. 2012) (en banc) (81 U.S.L.W. 176, 8/7/12).

2) Tyson Foods, $24 Million Reversal

Two Colloton opinions in favor of Tyson Foods Inc. are a prime example of how a more conservative court could make it harder for workers to bring wage claims against employers, Alliance for Justice, a progressive organization, said in November.

Colloton’s opinions together reversed a nearly $24 million award against Tyson Foods Inc., in Acosta v. Tyson Foods, Inc., 800 F.3d 468 (8th Cir. 2015), and Gomez v. Tyson Foods, Inc., 799 F.3d 1192 (8th Cir. 2015)(84 U.S.L.W. 313, 9/8/15).

Also citing the Tyson opinions, the conservative-leaning Daily Caller website said Colloton “has a record generally friendly to business.”

In separate class actions, a district court found that Tyson failed to adequately compensate meatpacking plant employees for time spent donning and doffing protective equipment, under the Fair Labor Standards Act and the Nebraska Wage Payment and Collection Act.

Colloton’s opinions for the Eighth Circuit dismissed the FLSA claims, based on the plaintiffs’ failure to file collective action consent forms required by the law.

The Eighth Circuit also dismissed the state law claims, finding that the plaintiffs failed to show that Tyson agreed to pay them more for their pre- and post-shift time than they were already receiving.

3) First Amendment Record

Colloton joined a decision that ruled against the Westboro Baptist Church’s challenge to restrictions on funeral protesting, in Phelps-Roper v. City of Manchester, 697 F.3d 678 (8th Cir. 2012) (en banc).

The church is known for picketing the funerals of fallen soldiers and holding signs with inflammatory messages such as “Thank God for Dead Soldiers.”

The Eighth Circuit found that a city ordinance barring protests within 300 feet of funeral sites didn’t violate church members’ rights to express their religious beliefs and to protest under the First Amendment.

The city had a significant interest in protecting mourners’ privacy interests, the court found.

Mourners “attending a funeral or burial share a privacy interest analogous to those which the Supreme Court has recognized for individuals in their homes,” the court said.

In another dispute involving religious speech, an opinion by Colloton ruled in favor of an evangelical Christian who was prevented from distributing Bibles at a gay pride festival, in Johnson v. Minneapolis Park & Recreation Bd. , 729 F.3d 1094 (8th Cir. 2013).

A regulation restricting literature distribution at a local park during the festival wasn’t narrowly tailored to serve the government’s interest in controlling crowds, Colloton wrote for the court.

The regulation was also underinclusive because it allowed street performers to perform in the park, which was more likely to create crowds than distributing literature, the court found.

4) Familiar Resume

Colloton’s resume is notably similar to those of current high court justices.

He clerked for former Chief Justice William Rehnquist, as did current Chief Justice John G. Roberts Jr.

Colloton was also editor of the Yale Law Journal, a position held by Justices Samuel A. Alito Jr. and Sonia Sotomayor.

And Colloton received his bachelor’s degree from Princeton University, as did Sotomayor and Justice Elena Kagan.

Trump’s short-list includes several individuals that would bring diversity to the court in terms of schools attended and experience.

5) Starr Service

After clerking for Rehnquist, Colloton worked for another hero to conservatives—Kenneth Starr.

He worked under Starr during the Whitewater investigation of former President Bill Clinton and Democratic presidential nominee Hillary Clinton involving real estate transactions in Arkansas.

Colloton worked on the Whitewater-related prosecution of former Arkansas Gov. Jim Guy Tucker (D) and Bill Clinton’s former business partners Jim and Susan McDougal, all of whom were convicted of fraud in 1996.

Colloton gained the respect of Tucker’s attorney, George Collins, who endorsed him in a letter to the Senate Judiciary Committee.

Collins said he believed Colloton would “call them as he sees them” and that conservative litigants wouldn’t “have any better chance before him than any other litigant.”

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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