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Monday, February 26, 2018

Facing imminent defeat

Is it possible to imagine more-certain defeat for a party before argument even begins than for the union (and the continuing vitality of Abood) in Janus v. AFSCME this morning? A Gorusch-less Court divided 4-4 on this issue two years ago. Alito is on record as wanting to overrule Abood; the Chief believes that every small thing a public union does--even negotiating a coffee break--is political, so compelling fees is compelling support of political speech; and Kennedy tends to go along with speech claimants. Gorsuch breaks the tie--and like most judicial (as opposed to academic) originalists, his originalist views invariably align with conservative and Republican anti-union political preferences.

The likely battle lines are known going in for most cases with this Court, although sometimes there is some room for play in the joints. But this issue has been so many years in the making. Scalia's death delayed it. But it feels as if it delayed the inevitable until this morning.

And for an advocate, how do you steel yourself for that situation?

Posted by Howard Wasserman on February 26, 2018 at 09:31 AM in First Amendment, Howard Wasserman | Permalink


So if my school district has a position in collective bargaining that teachers should not get raises, and I feel strongly that they should to attract better teachers, can I refuse to pay a portion of my school taxes on 1st amendment grounds? If it restricts one side in the bargaining process, shouldn't it work for both? It didn't work with the Vietnam War, did it?

The argument that politicians will be unable to resist the requests of public sector unions that support them somehow doesn't apply to the NRA that can give a million dollars to Ted Cruz and Tom Cotton without getting anything back in return, and can't be denied its rights to make large donations thanks to Citizens United.

Posted by: J.M.Rose | Feb 28, 2018 9:36:32 AM

When getting a raise requires raising taxes, getting a raise is an inherently political act.

When getting a raise means moving money from one government program away from another, it's an inherently political act.

When getting a raise means borrowing money from China because congress won't raise taxes, it's an inherently political act.

Posted by: Taxes are politics | Feb 26, 2018 9:30:57 PM

I can think of an even more imminent defeat: having the SEIU renegotiate your adjunct professor pay.

Is getting an extra $10/wk every two years an inherently political act?

Posted by: Derek Tokaz | Feb 26, 2018 4:47:53 PM

I don't know if we have enough of a track record to say that Gorsuch's views invariably align with conservative or anti-union preferences -- especially anti-union preferences, where I don't know that he has any track record at all. (And just last week, he didn't join an Alito-Thomas-Kennedy dissent in Class, so already he's a hair south of always reaching conservative-preferred results.) Of course, I agree that he's likely to vote to overrule Abood, and his asking zero questions at oral argument today does suggest that his mind is made up one way or another. That said, I think an advocate in that situation proceeds as if Gorsuch's vote is on the table, makes arguments that she thinks are most likely to attract his vote, and attempts to put enough in their brief showing (if this is possible) that originalism yields Abood that dissenters are in a position to embarrass him and the majority for being inconsistent originalists if he doesn't vote to uphold Abood. I also think that you proceed as if the Chief Justice's vote is available, on the theory that maybe the Court only divided 4-4 because it wanted to save this issue for resolution by a full Court, and that he may be willing to settle for some sort of half-measure.

I'm not sure if that's exactly what they did, but I think both Illinois's SG and the lawyer for the unions argued extremely well.

Posted by: Asher Steinberg | Feb 26, 2018 2:53:48 PM

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