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Wednesday, June 27, 2018

(SCOTUS Term) Janus

As I have said, the outcome in Janus was so over-determined, I am surprised it took this long to come out. It was decided--and everyone knew it was decided--on the night of November 8, 2016. I figured Alito and Kagan (who sparred in the two prior cases that set this up) had their respective decisions pre-written eighteen months ago.

My one take-away is that the opinion demonstrates why asking SCOTUS nominees about stare decisis is pointless. And so is looking at their decisions as lower-court judges. Stare decisis is too easy to pay lip-service to in a hearing and too malleable (to use the word that was all the rage in the opinion) to limit Justices determined to overrule precedent. And nothing that someone does as a  lower-court judge predicts what she will do when the only limits are prudence and rhetoric.

Kagan scores an important point by arguing that the only reason that Abood had become a First Amendment "outlier" was Knox and Harris, Alito decisions that included dicta attacking Abood that the majority then used to argue that Abood had been undermined. As Kagan wrote, "relying on them is bootstrapping—and mocking stare decisis. Don’t like a decision? Just throw some gratuitous criticisms into a couple of opinions and a few years later point to them as 'special justifications.'”

Time will tell if this decision hurts public-sector unions as much as advocates (and the dissenters) fear. I do not know labor law well enough to know. The majority says the union could charge nonmembers for representing them in arbitration or grievance procedures, although I do not know if that would be sufficient. Meanwhile, Aaron Tang offers a legislative solution to provide unions with sufficient resources (as have others). But Kagan is correct that there is now an enormous gap in the degree to which government can control employee expression when it comes to unions versus individual speech activities. It cannot compel non-members to pay for work-related speech (which the majority defines as being of public concern), but it can fire workers for making the same speech in and around the workplace. Kagan argues that this will prove to be a "unions-only" protection for government employees objecting to unions, who will otherwise find their at-work speech rights quite limited.

Posted by Howard Wasserman on June 27, 2018 at 01:24 PM in 2018 End of Term, First Amendment, Howard Wasserman, Law and Politics | Permalink

Comments

Yes, you'd think if Stare Decisis was real that Lawrence v. Texas would've never happened.

Posted by: Stare deScalia | Jun 27, 2018 3:00:58 PM

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