« Notice, Vagueness, and Trump’s Anti-Impeachment Argument | Main | Musical grammar scolds »

Thursday, January 23, 2020

Janus and Stare Decisis

Labor scholars have explored Janus and its implications to unions and the job market, but Mike Gentithes has written an article arguing that the most pernicious effect of the case will be the way it undermines stare decisis generally, with dire consequences for abortion rights, civil liberties...

here is the abstract: 

Drastic changes in Supreme Court doctrine require citizens to reorder their affairs rapidly and undermine trust in the judiciary. Stare decisis has traditionally limited the pace of such change on the Court, acting as a bulwark to wholesale jurisprudential reversals by the Justices. Yet in recent years, the stare decisis doctrine itself has come under threat.

With little public or scholarly notice, the Supreme Court has radically weakened stare decisis. The Court has long suggested that a precedent, regardless of the quality of its reasoning, should stand unless there is some special, practical justification to overrule it. But in several recent decisions, the Court has suggested that “poor reasoning” in a prior decision both triggers stare decisis analysis and justifies overruling cases. This presents a grave threat to legal stability. Justices can always find reasoning they believe is “poor” in prior decisions. Stare decisis under this formulation provides little restraint against changing course. It also opens the door to “wave theories” of stare decisis, whereby new Justices seeking rapid change can claim fidelity to a weak version of stare decisis early in their careers, only to suggest a stronger version later to protect their own decisions.

This weakened version of stare decisis has deep analytical flaws that would allow perpetual changes to legal doctrine based simply on the current Justices’ policy preferences. The Court must not accept the alarming effects such a weak version of stare decisis would have on legal stability, consistency, and judicial legitimacy.

very interesting read. H/T Rick Bales.

Posted by Orly Lobel on January 23, 2020 at 11:36 AM | Permalink


This can't possibly be a compelling analysis of Janus. If you feel the original decision was actually wrong (i.e. poorly reasoned and reached the incorrect result) then the practical justification is clear. Not overruling Janus means that individuals continue to have their free speech rights abridged. That ongoing harm is thus the practical reason. I don't agree Janus was wrongly decided but if it was then there is a practical reason to overturn it. Moreover, this is almost always the case.

Those who oppose abortion believe that the ongoing abortions are the kind of ongoing harm that needs addressing that those on the left would see in letting a case stand that allowed minors to be executed or burned at the stake. So no, I don't see any essential change.

Posted by: Peter Gerdes | Feb 8, 2020 11:06:45 AM

Orly, you may find great interest here I guess:

Ruling in UK ( employment tribunal ) deciding or ruling actually, that "ethical veganism", is a philosophical belief, protected by law as such ( as if let's say: certain religion ).

Here you can reach the ruling:


And here, to read on it ( and links therein) in the "UK human rights blog":


Posted by: El roam | Jan 29, 2020 3:32:34 PM

By the way Orly, you may find great interest here I guess, titled:

"Stopping Employers From Asking About Criminal History Is Not Working As Intended"


Posted by: El roam | Jan 26, 2020 8:51:05 PM

If the quality of reasoning is not sufficient to overturn a decision, Dred Scott would still be law.

Posted by: Phil | Jan 25, 2020 7:49:30 PM

"The Court has long suggested that a precedent, regardless of the quality of its reasoning, should stand unless there is some special, practical justification to overrule it."

No, the "special justification" has always been it's "poor reasoning", i.e., it's inconsistency with the written constitution and it's enumerated rights.

Janus had to overrule a prior decision because the prior decision was inconsistent with the first amendment, for the same reason Lawrence had to overrule a prior decision because that decision was inconsistent with the ninth amendment (fourteenth amendment for incorporation purposes).

Posted by: Switching Sides | Jan 24, 2020 7:56:16 PM

Wasn't Lawrence v. Texas, and not Janus, the first supreme court decision to reverse another supreme court decision and thereby get rid of stare decisis?

Posted by: Virginia Barnett | Jan 24, 2020 7:05:54 PM

By the way, one may reach " Janus " here:


Posted by: El roam | Jan 23, 2020 2:05:26 PM

Important issue of course. But, with all due respect, nobody wants it to be otherwise. Things change. In accordance jurisprudence must change. Fixation, rigidity is unacceptable. Legal stability is important. But, must yield sometimes to changes. No one can expect for example, to treat defamation lawsuit or interstate online commercial issues, in the same manner, in the pre - internet era, and the post era. This is unrealistic simply.

The same here in " Janus ". Things have changed. The court has given bunch of well coherent reasoning. But above all, speaking of changes, I quote ( from the Syllabus):

The Abood court's fear of conflict and disruption if employees were represented by more than one union have proved to be unfounded.


Whatever may have been the case 41 years ago when abood was decided, it is thus now undeniable that " labor peace" can readily be achieved through less restrictive means than the assessment of agency fees.

That's it.


Posted by: El roam | Jan 23, 2020 2:02:28 PM

The comments to this entry are closed.