Mark Pulliam rightly criticizes nonoriginalist judicial activism but wrongly would depart from the original meaning in other cases.
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.