Once you think about where originalism came from and what it was supposed to do, you begin to suspect that it may have run its course.
Here’s a case worth watching: this past April, the Center for Individual Rights (lead attorney Michael Rosman) and Jones Day (Michael Carvin) filed a First Amendment challenge to California’s “agency shops” for public school teachers. (An “agency shop” means that non-union members must still pay a fee to the union for activities related to collective bargaining.) Plaintiffs are teachers who have about had it with the defendant unions. The State of California will likely join the case on the defendants’ side. A recent blog on the case is here; a copy of the complaint here.
This baby ought to move fast: as the plaintiffs readily acknowledge, extant law is against them, and only the Supreme Court can fix that. Justice Alito’s opinion for the Court in Knox v. SEIU strongly suggested that the Court is willing to revisit the precedents. This lawsuit says “Thank you, Justice Alito. Invitation accepted.”
The jurisprudential issue here is a striking discontinuity in First Amendment law. Labor relations involve a lot of protected speech, laced with political content—by employers, union bosses, and (as here) workers with different opinions. Still, the New Dealers thought, you want to regulate this stuff on a comprehensive basis. To prevent the First Amendment from getting in the way, the post-New Deal Court put this stuff into a separate conceptual box called “labor law,” where ordinary protections for political speech and against compelled speech don’t apply. Over the decades, though, First Amendment doctrines have become much more protective, to the point where the conflict with the made-for-labor-regulation First Amendment is glaring.
If the Supreme Court were to align its labor cases with the First Amendment, that would be very big, and very good.