On April 10 I participated in a panel discussion sponsored by the Law School Chapter of the Federalist Society. The presentation was entitled “Lawyers, Plaintiffs, and Professors, Oh My!: Janus v. AFSCME.” The other panelists were Adjunct Professor and Director of the Law Library Elana Olson, Alumnus Daniel Suhr from the Liberty Justice Center , and Mark Janus, the name plaintiff in the case of Janus v. AFSCME. What follows are my prepared remarks.
In June of 2018 the United States Supreme Court held, in the case of Janus v. AFSCME, that it is a violation of the First Amendment for State and public sector unions to assess mandatory agency fees to non-consenting employees. The majority of the Court held that forcing non-union workers to contribute money to support non-political activities which benefit all workers violates the Free Speech rights of non-consenting employees.
In so holding, the Court overruled a precedent of over 40 years, Abood v. Detroit Board of Education, a 1977 case that had upheld the practice against a First Amendment challenge.
Opposition to labor unions and collective bargaining rights is a policy choice held by many political conservatives today, but it was not always the position of the Republican Party. One of the early icons of the conservative political movement in the United States, Whittaker Chambers, was himself a union member at times in his career, he was supportive of the labor movement, and his wife and many of his relatives were union members.
This icon of political conservatism in the 1950s and 1960s supported collective bargaining rights so much, that when the parent of the conservative National Review Magazine gave an award named after Whittaker Chambers to our guest Mark Janus, in recognition of his participation in the Janus v. AFSCME litigation, the family of Whittaker Chambers objected to their father’s name being associated with the case.
I do not mean to suggest that there was any objectionable conduct by Mr. Janus or that he did anything himself to instigate this reaction from the Chambers family. My point is simply that opposition to collective bargaining rights is a political policy preference that has grown stronger and more partisan over time.
The Janus v. AFSCME litigation was an opportunity to overturn one of the biggest legal victories of the labor movement, but the question is: what does it cost to achieve this policy goal?
One cost is the weakening of the Court’s traditional respect for precedent. The overturning of the Abood holding is not justified under the Court’s standard method for evaluating adherence to precedent.
Stare Decisis plays an important role in our legal system. Adhering to established precedent promotes stability in the law and predictability in the law. It re-assures the public that judges decide cases based on objective principles and not based upon personal preferences.
As Justice Neal Gorsuch said, when he was still on the Court of Appeals, “Our duty to follow precedent sometimes requires us to make mistakes.”
There are four factors that the Supreme Court has said are important considerations in the decision to overturn precedent. First, the Court should not overrule precedent that is of long standing and has created settled expectations. Second, the Court should avoid overturning precedent that has been relied upon by individuals and institutions. Third, the Court should hesitate to overturn precedent that is untouched by changing social attitudes or new factual developments. Finally, the Court should continue to follow prior precedent unless it’s holding has proven unworkable in practice.
None of these factors support the overturning of the Abood precedent. The Abood decision is old and well-established. Twenty-three states and the District of Columbia have adopted laws that incorporate the Abood holding for government employers and many unions have entered into long-term collective bargaining contracts that incorporate mandatory agency fees. There has been no change in the relevant facts or in broader societal norms between 1977 and today that would justify re-thinking the Abood decision. And the imposition of mandatory fees on nonunion members has been simple and straightforward to implement.
The weakening of precedent leads to second cost: the increasing politicization of the Supreme Court. When precedent is up for grabs, and no holding is immune from reconsideration, then the stakes are raised every time there is a vacancy on the Court. Every Supreme Court nomination becomes a life or death struggle over the future survival of precedent.
It doesn’t matter whether you were offended by the Senate’s unconstitutional obstruction of the Merrick Garland nomination or by the unseemly circus of the Brett Kavanaugh confirmation hearings – or by both. Lessening the regard for precedent makes the Supreme Court more political, not less. We are progressively destroying the ability of the United States Supreme Court to function as a neutral arbitrator.
Another cost is the continued weaponization of the First Amendment, as a tool for limiting the legitimate power of democratic government.
The traditional view of constitutional interpretation long held that the document limits the exercise of government power by dividing the lawmaking power between the federal government and the states. One consequence of federalism is that when the Supreme Court issues a ruling that limits the exercise of power at the national level, it leaves untouched the power of the people to govern themselves through actors at the state level.
But the ascendance of a more modern libertarianism, as reflected in the Janus decision, uses absolute and expansive individual rights to deny government the power to regulate at all levels of government – both national and state. The result is a zone of liberty where the people lack any ability to make laws or regulations in order to control or prevent individual activities that harm the greater good.
Who wins when the zone of activity free from any government control expands? Not you and me. It is business and corporate interests that benefit the most from the lack of regulation.
As Theodore Roosevelt noted in his New Nationalism speech in 1910, when corporations amass huge amounts of wealth and power, the only entity standing in between those corporations and the people is our government. Without a government with sufficient power to make law, the great mass of the people at large will be at the mercy of those who wield economic power in our society.
Speech is everywhere as part of human activity. And when spending money is considered speech, the First Amendment is stretched far beyond its original intent with a devastating effect on the power of self-government. Citizens elect representatives to further the will of the majority by passing laws that regulate health care, the environment, the sale of products to consumers, and the integrity of the system by which we hold elections. A weaponized First Amendment allows un-elected federal judges to override the policy choices of the voters and replace them with their own favored policies.
And so this absolutist view of the First Amendment leads to holdings that government lacks to power to prevent corporations from spending money to support political campaigns (as in Citizens United) and that government employers lack the power to compel the spending of money in ways that supports labor activities that corporations oppose (as in Janus). When this happens, the First Amendment is being used as a tool for removing government from its protective place — standing in between the people and corporations.
A final cost of the Janus decision is the ancillary consequence that the decision will have for other mandatory fee systems — in particular the assessment of mandatory dues to members of state bar associations. The rationale of the Janus decision will lead to the striking down of any state bar membership system that assesses mandatory dues as a condition of practicing law in the state.
The state bar does not merely serve the interests of its member lawyers. Rather, the state bar serves a broader societal role as a partner in the administration of justice. The activities of the state bar help judges, prosecutors, public defenders and government lawyers do their jobs and the state bar also provides a mechanism for private lawyers to be heard on issues relating to the justice system. In addition, the state bar serves an important role as an intermediary between the legal system and the general public, providing education and information to non-lawyers.
The rationale of the Janus decision does not just starve unions of money, it will also starve state bar associations.
My point today is simple. The overturning of precedent does not occur without cost. Please take a moment and consider the costs of the Supreme Court’s ruling in Janus v. AFSCME.