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How Janus Weakens Stare Decisis

Janus v. American Federation of State, County and Municipal Employees, Council 31, decided on Wednesday, was an important First Amendment case. It held that forcing public employees to subsidize their union violated their free speech rights to express their own views on public matters, like employee wages and work rules. But its greater significance for the future may be its endorsement of a relatively weak version of stare decisis. Given the centrality of precedents in the Court’s decisionmaking, little is of more practical importance than the doctrine that regulates their overruling.

Stare decisis has in the past been a notoriously pliable doctrine on the Court, but insofar as one can discern its shape, it comes in two versions—weak and strong. The strong version begins with a strong presumption in favor of sticking with the holding of any case previously decided by the Court. That presumption can be overcome, but, except in egregious instances, only by such factors as that the case has proved unworkable, has been overtaken by other developments in the law, and has not created substantial reliance by citizens on its holding. The exemplar of strong stare decisis is Casey v. Planned Parenthood (1992), which refuses to overrule Roe v. Wade (1973) while never undertaking any substantial review of Roe’s reasoning.

A weaker version of stare decisis begins by close analysis of the reasoning of the precedent under attack. That is the kind of analysis that Janus follows, focusing first on the “quality of reasoning” of Abood v. Detroit Board of Education (1977), the decision it overrules. To be sure, it then considers such issues as reliance and workability, but once a precedent is declared to be badly reasoned it is clearly on the way out. The Court seems to be moving toward this weaker form of stare decisis. Citizens United v. FEC (2010) also employed the weaker kind in overruling a previous campaign-finance case.

A shift to weaker stare decisis raise three issues.

The first is: What other cases are sufficiently badly reasoned that they too may be ripe for overruling? Begin of course with Roe, a case about which the superb legal theorist John Hart Ely, a supporter of abortion rights, said: “It is not constitutional law and gives almost no sense of an obligation to be one.” And the unique “undue burden” test that now applies to the regulation of abortion has not proved easy to apply.

Another obvious possibility is Morrison v. Olson, the 1988 case that upheld the independent counsel statute, but in which Justice Antonin Scalia’s dissent has commanded more and more respect over the years. In general, cases that permit Congress to deprive the President of control over executive branch agencies are candidates for overruling, because they are not well reasoned, have fuzzy and confusing tests, and create little private reliance.

An even more important question is: What constitutes bad reasoning? The Janus decision holds that the bad reasoning of Abood was its doctrinal inconsistency with much First Amendment law in carving out an exception allowing public sector labor unions to force their members to subsidize collective bargaining with which they disagreed. But the rise of originalism naturally raises the issue of whether an opinion that ignores the original meaning or gets it badly wrong has inherently bad reasoning.

Finally, with the likely appointment of another originalist justice, the renewed debate about stare decisis sparked by Janus takes on central importance. Supreme Court decisions are often built entirely on precedent, but in the near future they may require greater attention to right reason, however the rightness of reason is defined.

Reader Discussion

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on June 29, 2018 at 07:09:51 am

I do not necessarily see this as a bad thing. It seems, at least from my layman, public perspective, that sometimes rulings appear at odds with my understanding of the Constitution. I don't keep a catalog, but I note them as I see them. One that does stick with me however, is US v. Miller. In that case it was ruled that short barreled shotguns, and by extension, short barreled rifles were ruled as not protected under the Second Amendment because they had no military application, regardless of whatever legal, civilian applications they might have.
Fast forward to 2008, and in Heller v. DC, Justice Scalia reasons that the Second Amendment is not a collective right to military weapons, but an individual right to possess and use weapons in defense of the home. Arguably, a short barreled shotgun or short barreled rifle would be well suited to just this application, offering greater control, and better accuracy for many than a handgun. Yet, short barreled firearms, are still banned by reason of Miller. Perhaps with a weakened stare decisis this dichotomy can be resolved, if the Supreme Court ever takes another Second Amendment Case. They do not seem to be overly eager to do so.

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DF_Ham
on June 29, 2018 at 07:52:56 am

Well, let's hope Janus is a precedent for a future of right-reasoned reversals of many bad precedents. In its past the Court left a boat-load of crap that should be cleaned up.

It's fitting if not an omen that Janus was the two-faced Roman god of beginnings and endings, entrances and departures, always looking in two directions, the god who looked both ways.

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Pukka Luftmensch
on June 29, 2018 at 09:12:54 am

Unfortunately, there is an unpleasant legacy of the Court acting as the nation's chief legislature. As important as the doctrine of stare decisis is, it must not be used as a shield to protect legislative actions by the Court.

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Wayne Abernathy
on June 29, 2018 at 10:23:46 am

Agreed. However, I do not consider the undoing by the Court of its prior acts of Constitutional revision and legislation to be Constitutional revision, legislation or judicial "activism."

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QET
on June 29, 2018 at 10:28:47 am

Here is what the Court had to say in Casey re: stare decisis. It would appear that the Black robes have a MAJOR epistemological / philosophical / juridical hurdle to overcome, notwithstanding Janus as evidenced by thier presumptions in Casey.

"The joint opinion is perhaps most infamous for declaring, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” What this gauzy New Age rhetoric obscures is that the justices are claiming the unconstrained power to define for all Americans which particular interests they think should be beyond the bounds of citizens to address through legislation. But it gets far worse. Consider, for example, these passages on stare decisis considerations:

“Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

“To all those who will be so tested by following [the Court], the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete.”

“Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court but for the sake of the Nation to which it is responsible.”

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gabe
on June 29, 2018 at 11:13:12 am

I always found the plurality opinion in Casey regarding stare decisis by O'Connor, Kennedy and Souter (three of kind who'll beat a full house any day) amusing. Taney tried to do the same thing; quite a divisive and volatile political issue in the courts) in Scott v. Sandford.

Anyways, if fidelity to the Constitution is any way the new standard, the Court has set a job of work for itself.

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EK
on June 29, 2018 at 12:46:06 pm

You got to use this one as a "two-fer" today, Mr. Gabe! Good point (both places)!

Also, it seems the Union Lobby Spin-doctors have already been busy making Janus more about the right to join unions, rather than about the right not to join and finance: with this social media graphic : http://aflcio.shpg.org/48/188695?sp_ref=419580426.48.188695.f.0.2&source=sp_fb . And the sub-heading: "Share this image to support the right to join a union". - Ha!

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Paul Binotto
on June 29, 2018 at 12:52:52 pm

But I thought you guys liked the Republican New Wave and its insistence on weakening the safety net. I thought you guys liked Hobby Lobby and Citizens United, even though both were new law.

I am delighted to find that there's *something* about the right that you don't like instead of always saying at great length how the progressives are bad.

You would think it would be fair for a union to only represent those who pay dues, but of course the right can't have that--too many people at a workplace would find out that the union people got paid better.

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excessivelyperky
on June 29, 2018 at 13:13:23 pm

"I am delighted to find that there’s *something* about the right that you don’t like instead of always saying at great length how the progressives are bad. " , you know, you're right, Ex-Perk, maybe Progressives are too often portrayed here in a negative light, so I'd like to say something good about this group for a change,

"Progressives are good...for nothing". Just ribbing ;-)

Btw, what's new law about Hobby Lobby or Citizens United?

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Paul Binotto
on June 29, 2018 at 15:19:01 pm

What sort of incomprehensible gobbledygook has "percolated" up from the depths of my perky's cauldron?

BTW: "...the union people got paid better." indeed, at quite often at the expense of non-union members and the public till!

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gargamel rules smurfs
on June 30, 2018 at 09:38:27 am

I’ll ask the same question posed above—what new law was established by Hobby Lobby and Citizens United? The oft-heard refrain from Progressives is that the Court created a new person, the corporation, and illegitimately imbued them with rights. Unfortunately, the Dictionary Act of 1871 defines “persons” as including corporations without designation to their profit status or margins. So clearly there’s nothing new in that definition going back to Reconstruction. They ruled according to an act of Congress that in no way violates any provision of the Constitution and, in fact, is logically supportive of speech rights embodied in Amendment 1. Unions are corporations too and nobody ever argued with their speech.

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GJ
on June 30, 2018 at 23:45:49 pm

Oh, I eee, it's ok for corporations to lobby for huge tax cuts, but it's bad for workers to band together to get paid more. I thought that was decided with the Wagner Act in 1935. But I guess some people here still gripe about that evil minimum wage, the 40-hour week and overtime protections. How dare workers get some of the money that rightly belongs to CEOs!

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excessivelyperky
on July 01, 2018 at 01:18:17 am

Weakening stare decisis is a very good thing in this case, since up til now, stare decisis has been a one-way ratchet turning ever toward the left. No one complained about about Kennedy weakening stare decisis in Lawrence v. Texas, even though he was reversing Bowers v. Hardwick, a precedent only 17 years old. Stare decisis rarely prevents the so-called liberal wing of the Court from reaching its own preferred outcome. As to rversing Abood, any weakening of stare decisis seems minimal, since Abood itself ignored or grossly misapplied a number of Supreme Court decisions which should have precluded the outcome in Abood.

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Daniel Artz
on July 01, 2018 at 10:05:32 am

Goodness gracious, this perky behavior is ,orphing into hysteria.

Precisely WHAT cases have contested the 40 hr week, minimum wage, etc?

OMG, The sky is (probably, possibly, conceivably could be) falling.

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gargamel rules smurfs
on July 01, 2018 at 13:28:35 pm

I don't think anyone has a problem with "workers banding together to get paid more". The problem comes with demanding a fee just because a worker decides not to join the band. Will this weaken the Unions? Perhaps, but perhaps that is an indication that the need for a union has passed. If it ever gets to the point again that fair wages are no longer paid, perhaps its time will come again.

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DF_Ham
on July 02, 2018 at 06:56:48 am

If the best that the ardent—perhaps “perky” is a better descriptor?—defenders of unions have in the wake of Janus are straw men such as you are offering than indeed, unions are in trouble. But they’re in trouble because their own supporters can’t articulate a coherent or cogent argument for their continued existence, not because the big bad men in black robes with their crazy dictionaries.

You should learn the difference between constitutional rights and positive grants from statutes. Minimum wages, 40 hour work weeks, etc are entirely under the purview of Congress and may be changed at whim if that body deemed it appropriate. I doubt it will ever happen however much economics teaches us that minimum wages are a net harm to an economy, but I’ll say no more about esoteric theory as you have trouble grasping decidedly more concrete things.

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GJ

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