Supreme Court term finale: Targeting the gov't compelled-speech archipelago

The Supreme Court finished its 2017-18 term with a bang today in Janus v AFSCME, a ruling which may well transform electoral politics. However, the court’s term — and Janus itself — have deeper implications for free speech and the relationship between individuals and the government, and for that matter between the judiciary and the legislature as well as the people. In its final days, which might also be the final days of Anthony Kennedy’s tenure, the court has made a powerful case for individual speech and has gone a long way toward deconstructing the levers of government-compelled speech.


Janus made that explicitly clear, of course, as Jazz has already noted. The majority led by Samuel Alito took the dramatic step of overturning Abood to invalidate agency fees imposed by public-sector unions on government employees. Those fees are collected via statutes passed in the wake of Abood, allowing public-employee unions to use government force to compel workers to pay for their activism as a condition of employment. That violates the First Amendment’s right to free speech as well as assembly, as the court recognized today:

The Union claims that Abood is supported by the First Amendment’s original meaning. But neither founding-era evidence nor dictum in Connick v. Myers, 461 U. S. 138, 143, supports the view that the First Amendment was originally understood to allow States to force public employees to subsidize a private third party. If anything, the opposite is true. …

Abood was poorly reasoned, and those arguing for retaining it have recast its reasoning, which further undermines its stare decisis effect, e.g., Citizens United v. Federal Election Comm’n, 558 U. S. 310, 363. Abood relied on Railway Employes v. Hanson, 351 U. S. 225, and Machinists v. Street, 367 U. S. 740, both of which involved private-sector collective-bargaining agreements where the government merely authorized agency fees. Abood did not appreciate the very different First Amendment question that arises when a State requires its employees to pay agency fees. Abood also judged the constitutionality of public-sector agency fees using Hanson’s deferential standard, which is inappropriate in deciding free speech issues. Nor did Abood take into account the difference between the effects of agency fees in public- and private-sector collective bargaining, anticipate administrative problems with classifying union expenses as chargeable or nonchargeable, foresee practical problems faced by nonmembers wishing to challenge those decisions, or understand the inherently political nature of public-sector bargaining. …

Abood relied on an assumption that “the principle of exclusive representation in the public sector is dependent on a union or agency shop,” Harris, 573 U. S., at ___–___, but experience has shown otherwise. It was also decided when public-sector unionism was a relatively new phenomenon. Today, however, public-sector union membership has surpassed that in the private sector, and that ascendency corresponds with a parallel increase in public spending. Abood is also an anomaly in the Court’s First Amendment jurisprudence, where exacting scrutiny, if not a more demanding standard, generally applies. Overruling Abood will also end the oddity of allowing public employers to compel union support (which is not supported by any tradition) but not to compel party support (which is supported by tradition), see, e.g., Elrod v. Burns, 427 U. S. 347.


This is striking in and of itself, as was the dissent against it, which focused on the disruption caused by overturning Abood rather than on the question of individual rights under the Constitution. Much of the media and analytical focus will fall on that disruption, and for good reason. However, it might leave the impression that undermining unions was a motivation for the majority.

That would be a shame, because the series of decisions at the end of this term makes it clear that they were thinking more broadly. Start with Masterpiece Cakeshop, a decision that initially disappointed conservatives, including myself. The Supreme Court overturned a punitive judgment against bakery owner Jack Phillips by the state of Colorado for refusing to take part in a same-sex wedding on the basis of his religious beliefs. Rather than rule on the compelled-speech argument, the court reversed by a 7-2 margin by focusing on the unreasonable hostility by regulators towards Phillips’ religious beliefs. They later reversed a judgment against Barronelle Stutzman and Arlene’s Flowers in Washington on the same basis, remanding it to the district court for retrial in what was certainly a win for Stutzman but seemed like thin gruel for the First Amendment fight.

That changed with NIFLA yesterday. Perhaps the majority stopped worrying about 5-4 splits or perhaps they understood that a case involving abortion would never get any support from the liberal wing, but Anthony Kennedy and Clarence Thomas took the gloves off on compelled speech. Thomas ridiculed the outcomes of compelled government speech and excoriated California for its wildly unbalanced imposition of it, but Kennedy used his short concurrence to blast the entire practice:


The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of “forward thinking.” App. 38–39. But it is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.” Wooley v. Maynard, 430 U. S. 705, 715 (1977). It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.

And thus we come to Janus and the reconsideration of Abood. Seen in this context, the majority on the court has woven a clear thicket against the imposition of speech and limits on religious expression by government on individuals, whether or not it it gets imposed directly — as in NIFLA and Masterpiece Cakeshop — or indirectly, as in Janus and public-employee unions that ally themselves with a political party. To use a different metaphor, the combined effects of these three decisions create a sledgehammer against imposed speech that should — and likely will — stymie any further attempts to recreate them.


That’s a big win for free speech, religious expression, and freedom of assembly. To the extent that others lose in this exchange, it is only to the extent that they have illegitimately profited off of infringements on basic rights in the past. Stare decisis cannot be used to continue injustices and infringements, a point Alito explicitly makes in his ruling:

We recognize that the loss of payments from nonmembers may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members. But we must weigh these disadvantages against the considerable windfall that unions have received under Abood for the past 41 years. It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely.

All these reasons—that Abood’s proponents have abandoned its reasoning, that the precedent has proved unworkable, that it conflicts with other First Amendment decisions, and that subsequent developments have eroded its underpinnings—provide the “‘special justification[s]’” for overruling Abood.

Indeed. Rather than a radical outcome, it’s one that has been long overdue.

That’s not the only message sent by the court this term, either. As I wrote yesterday in The Week, the Supreme Court has all but shut down a new form of judicial activism that would have extended Article III authority far into the realm of electoral politics:


Indeed, despite efforts by activists to use the judiciary to overcome partisan outcomes in redistricting, and despite indications that the high court had some interest in it, multiple Supreme Court decisions announced in the last week indicate the effort is on life support, if not entirely dead. Good. …

It may not seem like it these days, but party affiliation is a mutable characteristic, just as are other less formal affiliations such as progressives, conservatives, moderates, and so on. Those are voluntary associations that change over time, part of the very nature of the “individual and personal” right to vote. Redistricting does not affect the ability to cast those votes, especially not on the basis of being a Democrat or a Republican, categories which can and do change on an individual and group basis.

The ruling in Gill may not have conclusively settled the question for all time, which will regrettably require courts to continue dealing with demands for judicially imposed proportional representation. However, the unanimous decision to enforce standing and to reject demands on the basis of “group political interests” is a welcome step in removing inherently political issues from the courts. The best solution for parties that fail to win their preferred proportion of elections is to find ways to appeal to voters, not file appeals to spite them.

Finally, let’s recognize that this series of 5-4 decisions would have gone the opposite direction had Merrick Garland taken Antonin Scalia’s place. Donald Trump can take credit for the excellent appointment of Neil Gorsuch to fill that seat, but Mitch McConnell was the man responsible for keeping it open in the first place. The man who seems to take delight in poking fun at the nickname “Cocaine Mitch” given him by a failed Senate primary candidate has every reason to be high (on life!) this week.


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John Sexton 7:00 PM on December 09, 2023
Jazz Shaw 2:31 PM on December 09, 2023