To Decide For Janus, Justices Must Flaunt Bedrock Principles
David Grandwetter, the general counsel for CSA, argues in the April issue of the CSA News that to decide for Janus, the Supreme Court Justices must first jettison stare decisis.
Having heard oral argument on Feb. 26, the Supreme Court is now deliberating Janus v. American Federation of State, County, and Municipal Employees, Council 31. A decision is expected no later than the end of June. Most Court observers heard nothing during oral arguments suggesting any of the eight Justices who heard the case of Friedrichs v. California Teachers Association case two years ago are in any different philosophical position than they were then, and they assume that the newest justice, Neil Gorsuch, will also vote for the plaintiff. Accordingly, all signs indicate the Court will rule in favor of Janus, thereby overturning 40 years of precedent flowing from its own 1977 decision in Abood v. Detroit Board of Education, which established the constitutionality of agency shop fair-share fees in the public sector.
Yet in order to do that, the Court will need to disregard the most prominent legal principle Courts abide by: stare decisis, Latin for “to stand by that which is decided.” Simply stated, stare decisis is the precept that lower courts follow the prior decisions of like and higher courts within their own jurisdiction. Since the Supreme Court is the highest court in the land, its prior decisions generally are binding on all other courts, including cases that later come before the Supreme Court itself.
Stare decisis has a long lineage in American law. Its justification is rooted in having certainty and consistency across decisions and, equally as important, avoiding variable decisions with every change in circumstance. The reasons for this are practical: The rule of law must be stable and steady so that lawyers can give sound advice, citizens can conduct themselves lawfully, and the judicial system is not a hodgepodge of disjointed interests. That’s why the Supreme Court has held that it must find a “special justification” in order to overrule one of its prior holdings. For example, such a special justification existed when the Court reversed itself in Brown v. Board of Education in 1954.
Justice Stephen Breyer sliced right into this “special justification” issue during oral arguments. Referencing perhaps the most well-known Supreme Court decision in history, Justice Breyer asked counsel for plaintiff Mark Janus, “How many cases should we go back? Should we apply modern frameworks to all old cases, beginning with Marbury v. Madison?”
While Justice Breyer’s question was rhetorical, the point is clear and there are guideposts as to when a “special justification” exists to dispense with stare decisis. First, the Supreme Court is generally less willing to overturn one of its own prior decisions when it is long-standing and individuals and institutions have come to rely on the governing principles of that prior decision and shaped their behaviors accordingly. As Justice Kagan noted during argument, 23 states and the District of Columbia have relied on Abood to craft legislation. If the Court were to reverse that decision, it would effectively invalidate labor agreements, in whole or in part, covering thousands of municipalities and millions of workers.
“When have we ever done something like that?” she asked bluntly.
The Court will also ask itself whether changing social attitudes or factual circumstances have altered the prior case’s legal principles. Brown v. Board is the clearest example of this, overruling the inherently wrong separate but equal doctrine of Plessy v. Ferguson. And, the Court will also assess how “workable” the prior decision is as applied to modern circumstances. The Abood standard has clearly been workable for nearly half a century: There has been a mechanism for those government workers who reap the negotiated benefits provided by a union such as salaries, due process, grievances and health care, but are opposed to ideological positions taken by a union to pay a fair share fee. It has been workable from the employer’s perspective too. The government has an interest in promoting labor peace by recognizing one union with which to negotiate and provide contractually mandated services under a collective bargaining agreement. The balance set forth in Abood does just that.
In urging the Court against finding a special justification to overrule Abood, counsel for AFSCME warned that a decision for Janus would “raise an untold spectre of labor unrest throughout the country.” Since those remarks, teachers in West Virginia, Kentucky, and Oklahoma – all states without collective bargaining — have walked off the job to protest low wages and shamefully low education budgets.
What’s the message from those states and why should the Supreme Court pay attention? Janus and his anti-union funders foresee a future in which unions crumble and the “free market” reigns. But without a singular and unified voice at the bargaining table, the justices need look no further than the current events unfolding in these decidedly red states and ask themselves how that future will look when applied across America.
How is that in the best interests of our children?
David Grandwetter is the general counsel for CSA.