A Very Short Abortion Law Primer

The constitutional right to abortion is bound to play a major role in Brett Kavanaugh’s confirmation to the Supreme Court. Here’s a very brief primer on the current state of the constitutional right and how Justice Kennedy’s replacement might help dismantle it.

Part I: Abortion law today

Everyone has heard of Roe v. Wade, the Supreme Court case that held women have a constitutional right to abortion. But the controlling cases in abortion jurisprudence are actually Planned Parenthood of Southeastern Pennsylvania v. Casey (which cut back but did not eliminate protection) and Whole Woman’s Health v. Hellerstedt (which reinvigorated it). Although Justice Kennedy was not on the bench for Roe, he provided a crucial fifth vote in both Casey and Hellerstedt.

A. Roe v. Wade (1973)

Roe declared that abortion was a fundamental right protected by the U.S. Constitution. Regulations of first trimester abortions (when roughly 90% of abortions occur) were presumptively unconstitutional.

B. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)

The unwritten question presented in Casey was whether the Supreme Court would overrule Roe. It did not. It did, however, change the test for deciding whether an abortion regulation was constitutional.

Under Roe, regulations were constitutional only if they passed strict scrutiny, a demanding test requiring that the government prove its law was narrowly tailored to advance a compelling government interest.  Under Casey, regulations were constitutional unless they imposed an “undue burden”—defined as a substantial obstacle in the path of the woman seeking an abortion. However, significant hardship did not necessarily amount to a substantial obstacle. For example, the Casey Court upheld mandatory waiting periods that forced women to make two (potentially expensive and arduous) trips to her abortion provider.

C. Whole Women’s Health v. Hellerstedt (2016)

Hellerstedt added some rigor to the undemanding “undue burden” test. It required courts to consider a law’s benefits as well as its burdens.  That is, in addition to analyzing whether challenged regulations created an obstacle (burden), courts were now to also evaluate whether they advanced the government’s stated purpose (benefit). Because Texas failed to provide evidence that its regulations actually improved women’s health, they were struck down.

Part II: Abortion law in the future

It well known that four members of the Supreme Court are hostile to abortion. Brett Kavanaugh’s fifth vote would allow the Court to remake the law. The Court could expressly overrule abortion precedent or it could change the legal standard to allow most abortion regulations.

A.    Overrule Roe

The Supreme Court could say that Roe v. Wade was wrong the day it was decided and declare that the U.S. Constitution does not protection abortion. If so, the Court would be overruling not just Roe but the many Supreme Court cases that have reaffirmed the right to abortion. Not only would such a move be unpopular—2/3 of Americans polled support Roe—but if perceived as a political decision it would raise questions about the Court’s legitimacy.

B.     Redefine standard

However, the Court does not need to explicitly reject Roe to change the law. Courts regularly overrule decisions incrementally rather than all at once. With abortion, the Court may once again redefine the standard for constitutionality and/or apply the standard so permissibly that just about all regulations would be found constitutional. Thus, a commitment to keep Roe is meaningless without a commitment to maintain the rigor of Hellerstedt.

III. Abortion Law in the States

Of course, a Supreme Court ruling that the U.S. Constitution does not protect abortion is not the same thing as banning it. Instead, the absence of federal protection means that abortion rights will depend on state law.

A.    State Strategies to Eliminate Abortion Rights

Abortion would probably become illegal in at least half of the states. A few states have “trigger” laws in place that automatically outlaw abortion as soon as the Supreme Court overrules Roe. Others have pre-Roe bans on the books that have never been blocked. Still others have legislatures that would quickly enact new restrictive laws.

B.     State Strategies to Protect Abortion Rights

Abortion would not become forbidden everywhere in the United States. Even if the federal constitution does not protect abortion, state constitutions might. It might be protected by an express “right to privacy,” such as Florida’s, which promises that “[e]very natural person has the right to be let alone and free from governmental intrusion into the person’s private life.” Or a state Supreme Court may interpret its constitution’s due process clause or equal protection clause to reach reproductive autonomy.  Finally, some state legislatures may react by affirming protection for abortion.

Highlights from Trump v. Hawaii and Pereira v. Sessions

On June 26, 2018 the Supreme Court issued a 5-4 decision in Trump v. Hawaii. The majority opinion was issued by Chief Justice John Roberts and involved the legality of a proclamation known as the “travel ban.” Two earlier versions of the ban were issued as executive orders were challenged successfully in court and then either were revoked or expired.

The Immigration and Nationality Act was passed by Congress in 1952 and has been compared second in complication to the US tax code. In all three versions of the ban, the President relied on a section of the immigration statute known as Section 1182(f), which allows a president to suspend the entry of any noncitizen or class of noncitizens if such entry “would be detrimental to the interests of the United States.” When Congress amended the statute in 1965, it removed the national-origin-based quotas and created a nondiscrimination clause in Section 1152(a) to underscore that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” Both sections 1182(f) and 1152(a) are relevant to Hawaii v. Trump.

The two main cases challenging Travel Ban 3.0 came from Hawaii and Maryland. The plaintiffs were successful at both the district courts and the appellate courts. Strangely, the Supreme Court allowed the full version of Travel Ban 3.0 to go into effect before the appellate courts made a decision and before its decision on June 26, 2018. In the majority opinion, Chief Justice Roberts found that the ban falls within 1182(f) which itself is a broad statute. He stated that the plain language of Section 1182(f) “exudes deference to the President in every clause.” The court found that the President had fulfilled the “sole prerequisite” of the statute that the entry of the covered nationals “would be detrimental to the interests of the United States.” The court also rejected the plaintiffs’ argument that the nondiscrimination clause in Section 1152(a) cabins the authority of the president to exclude nationals from whole countries. The court aligned with the government’s position that the language of “entry” in Section 1182(f) is distinguishable from the “visa issuance” process covered by Section 1152(a). In my opinion, this mechanical point promotes a distinction without a difference. Blinking that reality only ushers in what Congress feared: a de facto national-origin quota system like the quotas that Congress decisively rejected when it reshaped immigration law in 1965.

The majority in Hawaii v. Trump also found that the proclamation does not violate the Establishment Clause. Looking at the text and “extrinsic evidence,” Chief Justice Roberts found that the proclamation was based on a legitimate purpose “preventing of nationals who cannot be adequately vetted and inducing other nations to improve their practices.” Justices Kennedy and Thomas agreed with the opinion but had additional views. For example, Justice Thomas held that the President does not need 1182(f) to issue his proclamation because he has “inherent authority” to do so. In his dissenting opinion, Justice Breyer was critical about the proclamation’s waiver process and argued that the waiver process is more like “window dressing” and confirmed this through data points, a sworn affidavit from a consular officer and case stories contained in various amicus briefs filed in connection with Hawaii v. Trump. Justice Sotomayor issued a compelling dissent and concluded that the proclamation was motivated by anti-Muslim animus.

Where do we go from here? Because the ban has already been in full effect, America has already witnessed devastating consequences, including hundreds of families separated. Iranian parents have lost the opportunity to visit the United States to see their child graduate. Syrian students courted by a university for years have missed the chance to obtain a visa and study in the United States. Yemeni husbands have been stranded in Djibouti unable to reunite with their American wives and children in the United States because of a civil war in Yemen and refusal by a consulate to issue a visa. I have personally witnessed each of these scenarios in my work, and the feeling has been nothing short of heartbreak.

While the case in Hawaii v Trump is viewed as a significant setback for immigration attorneys and those (myself included) who view the proclamation unlawful for either constitutional or statutory reasons (or both) the Supreme Court issued a more positive decision in the case of Pereira v. Sessions. The issue in the case was, “Does a ‘notice to appear’ that does not specify the ‘time and place at which the proceedings will be held,’ trigger the stop time rule?

First, some terminology: The notice to appear (NTA) refers to the charging document drawn by the government and served on the individual in connection with removal (“deportation”) hearings. The NTA includes important information like the date and location of the hearing and the immigration charges the government alleges the non-citizen has violated. Once the NTA is filed with the immigration court, removal proceedings have commenced.

Cancellation of removal is statutory remedy available for non-permanent residents (non-green card holders) who can show physical presence in the United States for a continuous period of ten years, show removal would cause exceptional and extremely unusual hardship to a U.S. citizen or an LPR child, spouse, or parent, among other requirements. When an NTA is served on the noncitizen, the 10-year “clock” on continuous physical presence stops.

The Supreme Court released Pereira on June 21, 2018. Writing for an 8-1 justice majority, Justice Sotomayor said, “If the Government serves a noncitizen with a document that is labeled ‘notice to appear,’ but the document fails to specify the time or place of the removal proceedings, does it trigger the stop-time rule? The answer is as obvious as it seems: No. A notice that does not inform a noncitizen when and where to appear for removal proceedings is not a ‘notice to appear under section 1229(a)’ and therefore does not trigger the stop-time rule.”

Justice Kennedy joined fully with the court but wrote a concurring opinion to express his concern with the way Chevron had been applied by the circuit courts that deferred to the BIA’s interpretation in Camarillo, saying, “The type of reflexive deference exhibited in some of these cases is troubling.” In his dissent, Justice Alito accused the majority of ignoring Chevron deference “in favor of [an interpretation] that it regards as the best reading of the statute.” In arguing that the statute is ambiguous, Justice Alito pointed out how all but one Court of Appeals to consider the question reached the opposite conclusion.

What this means: The stop-time rule will not be applied to noncitizens who are served NTAs that do not include, at a bare minimum, the time and place of the hearing. Until a noncitizen is served an NTA that includes such information, the noncitizen will be able to continue to accrue continuous physical presence for “cancellation of removal” purposes. The decision could also have implications for a broader set of noncitizens served with defective NTAs.

Finally, let me close with my reflections on the retirement of Justice Kennedy. I had the privilege to meet and spend time with him as a green eyed 19-year old undergraduate student spending a semester in Washington D.C. Fast forward several years later, I can only read Justice Kennedy’s concurrences in Hawaii and Pereira to reveal two different spectrums: one that is deferential and the other that questions at the macro level how courts are applying Chevron deference. A major focus of my research has been on the role of discretion in immigration law. I am grateful to Justice Kennedy for his leadership in Arizona v. United States and his (re)affirmation of the role of discretion immigration matters when he said: “Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal.”

*Portions of this blog are pulled from Remarks during ACS’ Annual Supreme Court Review held on June 28, 2018 and the following: Shoba Wadhia, Symposium: Reflections on the travel ban decision, SCOTUSblog (Jun. 26, 2018, 5:02 PM), http://www.scotusblog.com/2018/06/symposium-reflections-on-the-travel-ban-decision/; https://pennstatelaw.psu.edu/sites/default/files/documents/pdfs/Immigrants/Pereira%20v%20Sessions%20Decision.pdf.

Evaluating a Supreme Court Nominee

President Trump’s nominee for the Supreme Court, Judge Brett Kavanaugh, has impressive credentials and intellect but those traits mark simply the beginning of an appropriate and normal assessment of the qualifications a Supreme Court nominee.  Confirmation for a Supreme Court vacancy also always requires an intensive consideration of the nominee’s judicial values and character and the Court’s needs at the time.  That is certainly true today.

Supreme Court nominations are unique and accordingly demand a higher standard than applied to other presidential personnel decisions.   Unlike the vice president or Cabinet members who help a president discharge executive branch responsibilities, Supreme Court justices sit atop an independent branch of government.  Their mission is to wisely interpret law, to act as a check on the president, Congress, other federal courts, and state governments, and to vindicate individual rights.  Supreme Court justices have life-tenure and will serve without further review long beyond the presidents who nominate them or, generally, the senators who confirm them.  Justice Anthony Kennedy’s service spanned six presidents; Justice John Paul Stevens, seven.

These constitutional characteristics, of independence and longevity, require that the Senate exercise a far more intensive scrutiny of Supreme Court nominees than of other presidential nominees.  The Constitution empowers the president to nominate for the Supreme Court but the Senate has an equal responsibility to subject a nominee to a searching examination.

And that consideration must go far beyond ascertaining that a nominee is smart and has judicial experience.  After all, Judge Merrick Garland had better credentials than Judge Kavanaugh.  He had served nearly 20 years on the United States Court of Appeals for the District of Columbia, often called the second highest court in the land, without ever having been reversed when President Barack Obama nominated him for the Court.  Republicans and Chief Justice John Roberts, had praised his talents effusively.  Yet contrary to the text of the Constitution and prior practice, Republican Majority Leader Mitch McConnell argued that Obama’s power to make judicial appointments to the Court ended during a presidential election year and he and his Republican colleagues refused to give Judge Garland even a hearing or a vote.

Except for the unprecedented mistreatment of Judge Garland, the Senate has examined a nominee’s judicial values and philosophy during the last 50 years and often before then.  That has especially been true in cases like this one where the nomination was based on an ideological screening and seems likely to herald massive shifts in prevailing judicial doctrine.  It should do the same with Judge Kavanaugh.

Many of Judge Kavanaugh’s proponents hope that his confirmation will produce Court decisions overturning Roe v. Wade, curtailing affirmative action, expanding gun rights, cutting environmental protections, overturning the Affordable Care Act, and allowing discrimination against same sex couples.  Justice Kennedy served on the Court only after the Senate decided that Judge “Robert Bork’s America” was not consistent with constitutional values as it saw them.  The Senate has an obligation to consider the likely shape and rationale of constitutional and statutory interpretations of a Court with Judge Kavanaugh.

As most past presidents have recognized, context matters.   They have not thought simply of ideological outcomes but of the Court’s needs more holistically.  President Dwight D. Eisenhower appointed William Brennan in part because he was a Democrat and the Court lacked a former state judge. After winning a narrow election, Bill Clinton nominated Judges Ruth Bader Ginsburg and Stephen Breyer respectively in part because Republican senate leaders recommended those choices.  Notwithstanding the fact that nearly 3 million more voters preferred that Hillary Clinton, not Trump, nominate justices and that the Senate is narrowly divided, 51-49, Trump used an ideological screen rather than seek the balance that context suggests in selecting Justice Kennedy’s replacement.

Judge Kavanaugh’s effusive praise of President Trump at the announcement ceremony was troubling and highly inappropriate for a sitting judge and a Supreme Court nominee.  Judge Kavanaugh proclaimed that “Throughout this process, I’ve witnessed firsthand your appreciation for the vital role of the American judiciary.  No President has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination.”  Unless Judge Kavanaugh happens to have studied presidential behavior regarding the more than 160 Supreme Court nominations in American history he would not actually know whether the second sentence in his quote above is true or not.  Such sycophancy characterizes the behavior of Vice President Mike Pence, Kellyanne Conway, and other Trump subordinates, but a current and prospective member of the nation’s independent and non-partisan branch should not be propagating White House talking points as Judge Kavanaugh did.  Most recent nominees have simply thanked the president who nominated them; none bestowed such a glowing and inappropriate endorsement.

More importantly, Judge Kavanaugh’s willingness to praise Trump’s “appreciation for the vital role of the American judiciary” is astounding given Trump’s pattern of attacking federal judges.  During the 2016 campaign Trump repeatedly suggested that Judge Gonzalo Curiel, a federal judge in California who was born in Indiana, was biased against Trump because “he’s of Mexican heritage.”  Trump denounced a respected jurist President George W. Bush had appointed as a “so called judge” after he blocked Trump’s immigration order regarding seven predominantly Muslim countries.  He used Supreme Court reversals of Ninth Circuit decisions to castigate the judicial system.  “But what does that tell you about our court system? It's a very, very sad thing." Judge Kavanaugh prefaced his remarks with the phrase “[t]hroughout this process” but, especially given this context, it’s hard not to be appalled by Judge Kavanaugh’s comment or his thought that such submissiveness to a president who has made sport of attacking the judiciary is appropriate.

That behavior is especially troubling because Judge Kavanaugh will have occasion to consider, among other pressing issues, questions regarding the constitutional and statutory boundaries of presidential power.  The Trump presidency, more than any other in modern times, has presented dangers to our constitutional system through Trump’s hostility to the rule of law and to basic norms of democratic accountability as reflected in his words and deeds.   Will Judge Kavanaugh act as an independent justice in such cases given his obsequious comments at the White House ceremony?

Judge Kavanaugh, like Judge Garland, is entitled to hearings and to have his record, views, and qualifications discussed in a thorough and civil manner.  Hopefully he’ll receive what Garland was denied.  It’s great that Judge Kavanaugh is intelligent and credentialed.  But those are necessary, not sufficient, grounds for service on the Court.  No one is entitled to be a Supreme Court justice.  That’s a decision to be made based on how a nominee’s service will impact our constitutional system for decades to come.

Stakes Couldn't Be Higher With Court Selection

by John Hamilton, Mayor of Bloomington, IN and Dawn Johnsen, Walter W. Foskett Professor of Law at Indiana University Maurer School of Law

*This piece was originally published by The Herald-Times. 

Bloomington is a long way from Washington, D.C., but the stakes in the battle over the Supreme Court’s future are monumental, here and around the country. Who replaces retiring Justice-in-the-middle Anthony Kennedy will shape who we are as a community and as a nation for generations to come.

President Trump and many in the Senate seek to remold America, and explicitly target the courts to do so. Time and again, first candidate and now President Trump attack our fair and independent courts, undermining the rule of law, democracy and fundamental liberties. That’s the same Trump who lost the popular vote by millions, who is under investigation for colluding with a foreign enemy to win the election and who regularly demeans our republic with his bigotry and bullying.

Now a second Supreme Court seat (after the stolen first one) awaits Trump’s appointment. The prospects of a five-member radical-right majority are staggering. Such a locked-in bloc could indeed remake America:

  • By eroding our most cherished civil rights and liberties — Our nation is a work in progress. Over time, we have remedied injustices and extended our core commitments to many previously excluded, including African Americans and other racial minorities, women, gays and lesbians, recent immigrants and religious minorities. Justice Kennedy cast critical votes to protect fundamental rights and liberties all of us deserve — to marry, to love, to decide whether, when and how to bear and raise children — and against decimating remedies for racial segregation.
  • By dangerously distorting fundamental structures of our democracy — Our remarkable constitutional “checks and balances” would be hijacked, shifting powers away from the American people and our elected representatives and to an imperial presidency and Supreme Court. Many pillars of our system are at special risk. The right to vote in free and fair elections, uncorrupted by extreme gerrymandering and overwhelming and secret corporate money. Congress’ power to legislate on vital national challenges, such as health care (the Affordable Care Act), environment protection, climate change, economic inequality and civil rights. Access to courts to protect consumers, workers and individuals against wealthy special interests.

All this and much more is at risk from a new justice.

A radical political agenda seems driven by fear of our changing America. As we become more diverse and more progressive, demanding more justice and opportunity for all, this agenda aims to take us backward and disempower the American people in our striving toward that “more perfect union.” The Supreme Court is ground zero for that struggle.

Our senators must preserve our democracy and our future. We must call upon them (daily!) to oppose any nominee who does not affirmatively recognize long-established law in these essential areas: The constitutional right of all people to make their own decisions about their personal relationships and their bodies, including to use contraception, to have an abortion or to bear a child, and to marry whom they choose.

And the fundamental structures of our constitutional democracy, including free and fair elections, the power of the people to promote the general welfare through legislation and genuine access to courts to protect against powerful moneyed and corporate interests.

Senators Donnelly and Young both voted to confirm Justice Neil Gorsuch. Both should oppose another ideological nominee who would radically remake America and diminish our liberties and our democracy. With all this on the line, we all need to act. Our future generations depend on it.

Janus: Weaponized First Amendment Shoots at Democracy

In Janus v. American Federation of State, County and Municipal Employees Council 31, the Court declared unconstitutional labor laws and union contracts in 22 states, the District of Columbia, and Puerto Rico. These laws and contracts required union-represented workers to pay their fair share of the cost of negotiating and administering labor contracts. Using what Justice Kagan described in dissent as a “weaponized” version of the First Amendment, the Court continued its six-year attack on public employee unions.

The case originated when Republican Bruce Rauner was elected governor of Illinois. Rather than negotiate with the state’s public employee unions to address the state’s budget issues, or work with the Illinois legislature to repeal laws he considered an obstacle to that goal, Rauner filed a federal law suit to get fair share fees declared unconstitutional. That says quite a bit about Janus – it was from the start an effort to use the federal courts to thwart democratic and politically accountable governance.

The state laws and contracts that Governor Rauner asked the federal courts to invalidate are settled principles of federal, state, and local labor law. For well over a hundred years, labor unions have sought contract terms that require all employees represented by the union to either join the union or pay their fair share of the costs the union incurs in negotiating and enforcing a labor contract. Administering a fair personnel process is expensive. In a unionized workplace, employees have some say in the process, unlike nonunion employees. But if workers are partly responsible for HR, the union must raise the money to support it. Unions are, in this respect, just like governments. A city or state requires every resident to pay taxes to support schools, parks, police, firefighters, and prisons. Some people deeply oppose policing and prisons, or don’t use schools or parks, but they pay taxes to support them. These are what economists call common goods, and an elementary principle of economics is that no economically rational person will voluntarily choose to pay for them so long as others pay to support them.

From 1947 until Janus, the law has been settled that states can choose whether to allow fair share fees, though it’s ultimately up to each union and agency to decide whether to require them. And the law has been settled since 1977 that unions cannot use fees paid by non-members for political purposes. This was a sensible compromise: everyone must share the cost of the HR process but no one can be required to contribute to political activity.

The Janus majority, in an opinion by Justice Alito, overruled that settled law. The Court held that the payments for representation services are speech protected by the First Amendment because the union uses the money to engage in speech (negotiating a and administering contract). That, by itself, is an astonishing proposition. All of us are compelled by law to pay money to entities that use it to engage in speech activities. Taxes. Homeowners association dues. Health insurance premiums. Pension plan contributions. Licensing fees. Public school and university student fees. The majority in Janus didn’t say anything about these other fees. In Harris v. Quinn (2014), the same five-justice majority held unconstitutional fair share fees for unionized home health aides paid by Medicaid and said they thought that the government has a more compelling interest in requiring attorneys to pay state bar dues and public university students to pay activity fees.  That’s one problem with Janus: the Court gave no reason for prohibiting union fair share fees while allowing other compulsory payments; except, as Justice Kagan said in dissent, “because it wanted to.”

Janus is unprincipled in yet another way: under a 50-year-old Supreme Court precedent public employees have relatively few First Amendment rights. In particular, they have no First Amendment right to speak to their supervisor about their working conditions. In Garcetti v. Ceballos, the Court upheld the discipline of an assistant district attorney who raised concerns with his supervisor about false police testimony that could lead to a wrongful conviction. That speech, the Court held, is not protected by the First Amendment no matter how important the issue, because it was speech about the DA’s work. On matters outside of their job duties and in forums outside the workplace, the Court held in Pickering v. Board of Education (1968) that public employees have a right to speak out as citizens, but only on matters of public concern, and only if their speech does not disrupt the government’s interests as employer.

Janus brushes aside this well-settled law, and its reasoning does not pass the red face test. First, Justice Alito explained, Pickering and Garcetti are a different strand of First Amendment doctrine. That’s silly: there aren’t multiple First Amendments. All of these cases concern public employees’ free speech rights, and the Court needs to explain why employees can get fired for complaining about their work, but not for refusing to pay fair share fees.

Second, Justice Alito explained, Pickering and Garcetti were cases in which employees were prevented from speaking, not compelled to speak. That, too, would earn a very poor grade if a student wrote it: the Supreme Court does not treat compelled speech differently than speech. Take the Court’s original compelled speech case, which struck down discipline of students with a religious objection to reciting the Pledge of Allegiance: would it matter if a student were disciplined for refusing to recite the Pledge, or for reciting it but changing the words to avoid offending the student’s beliefs? Of course not.

Justice Alito’s third way of distinguishing Pickering and Garcetti was the most intellectually bankrupt of all: those cases, he said, concerned the rights of individual employees, whereas fair share fees are blanket policies affecting all workers equally. That is not the law and never has been. And it isn’t even the law that the Court itself applied in two other First Amendment cases this spring. The day before the Court handed down Janus, it held that the First Amendment invalidated a California law requiring women’s health clinics to give accurate information. This involved a blanket policy regulating the speech of all health providers, not individual restrictions. Similarly, in Masterpiece Cake Shop, a bakery argued that a state law prohibiting discrimination in places of public accommodation violated its alleged free speech right to refuse to serve gay couples. The Court did not decide the First Amendment issue, sending the case back to the lower court to reconsider, but the Court never suggested that the First Amendment wouldn’t apply because the law affects all businesses rather than just Masterpiece. First Amendment rights don’t get stronger when it is one person rather than many whose speech is restricted.

The final justification Justice Alito offered in Janus was that some forms of political patronage hiring are unconstitutional and, therefore, union fees should be unconstitutional too. Apart from the false syllogism, the reasoning falls apart because the Court has upheld many laws prohibiting political activity of government employees. It upheld the federal Hatch Act (which prohibits certain partisan political activity on federal government employees’ free time). It upheld state laws that prohibit patronage appointments in low-level jobs. The only restriction on political patronage the Court has declared unconstitutional is a restriction on awarding policymaking jobs based political affiliation. (There might be many reasons why Democrats wish Jeff Sessions were not the Attorney General, but one cannot argue that his early political support for Donald Trump makes it unconstitutional for Trump to choose him.)

Janus is an ideological attack on workplace and political democracy. Unions are democratic institutions in almost every possible way. A union gains the right to represent workers only when a majority vote for representation. Unions govern themselves as democracies, electing their leadership at the local, statewide, and national level. And unions play a crucial role in educating the workers they represent about political issues and getting out the vote. The states that allow fair share fees are primarily blue states. And the unions primarily support Democrats (though they don’t use fair share fees to do it).

The impact of Janus will be significant. Anti-union groups have already hired canvassers to go door to door in blue states encouraging employees to quit their union and quit paying dues by convincing them that they can get the benefits of the union contract without paying for it. Their goal is to get so many teachers, home health aides, and others to leave the unions that the unions lack the money to provide services to all the workers they represent. And as the quality of services falls, more will leave the union, until ultimately the union will wither away. This probably won’t happen in solidly blue states because unions will come up with alternative funding mechanisms – perhaps laws allowing union agents to handle grievances on paid time, as exists in federal employment, or perhaps laws allowing governments to fund unions directly so that the money never comes out of the employees’ paycheck. These would avoid the First Amendment problem the Court perceived in Janus, though they risk making unions less accountable to their members and more dependent on the government. But unions in purple or red states will suffer, and that may increase rather than decrease political polarization by weakening one of the few institutions that counters the conservative right.

We should have no illusions that Janus will be the Supreme Court’s last case attacking public sector unions. The majority’s contempt for public employee bargaining is quite plain: they repeatedly connected state budget woes to unionization. The reality, of course, is otherwise. Some states (like California) have balanced budgets while having powerful unions. Others (as illustrated by the 2018 teacher strikes in West Virginia, Oklahoma, and other states) have dire budget situations even though collective bargaining is illegal.  The same anti-union activists that ginned up Janus have other laws in their sights. They have brought cases arguing that, if paying fees to support bargaining is unconstitutional, it should be unconstitutional for a union to negotiate a contract on behalf of those who do not want union representation at all. Anti-union advocates have lost those cases before, but Janus may change that.

The most pernicious part of the majority’s handiwork in Janus is its idea that the First Amendment empowers the Court to strike down any law regulating speech, regardless of the wishes of the majority. In describing Mark Janus, Justice Alito showed his contempt for workplace and union democracy. Explaining why Janus should be entitled to free ride on the dues paid by his co-workers, Alito said he was not free-riding “on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage.” That’s the thing about our democratic republic. Elections have consequences, and we all face them together. Except the five justices casting their eye across America and upholding the laws they like and striking down those they don’t.

Janus was one of fourteen 5-4 decisions this Term in which Anthony Kennedy joined with Justices Roberts, Alito, Thomas and Gorsuch in reaching a conservative result. None of those whose names have been floated as his replacement is likely to be an advocate for a more tolerant or egalitarian interpretation of the constitution. Everyone in the United States who is concerned about the growing divide between rich and poor, everyone who supports women’s reproductive freedom, and everyone who wants more kindness, tolerance, and respect for religious and sexual minorities and immigrants is on an unwanted voyage to a destination they would rather not reach. And the Republican appointees to the Court are the captains of the ship, navigating with only their own personal policy preferences as a guide. That’s not democracy; it’s piracy.

“Conservative” Justices Upend 41 Years of Precedent to Reduce Union Power

The Supreme Court’s decision in Janus v. AFSCME provides a primer in how to overturn precedent.  In addition, it offers a lesson in how powerful political interests combine to consolidate their power.

Justice Alito began to lay the groundwork for reversing Abood v. Detroit Board of Education in 2012 in Knox v. Service Employees.  He continued the project in Harris v. Quinn in 2014.  In both of those cases involving union fees, he raised questions about their constitutionality in dicta.  Having inserted this dicta into the opinions, he then cited it in later decisions as casting doubt on the Abood decision. Given the lengthy history of conservative political organizations challenging union dues and fees, there was no question that the issue would return to the Court once Justice Alito had planted those seeds of doubt. The Justice got his first chance in Friedrichs v. California, but the death of Justice Scalia caused a 4-4 stand-off. Janus provided the opportunity to complete the project. The joint efforts of a majority of conservative justices (obtained by the political delay in appointing Justice Scalia’s successor) and the organizations that challenge union fees (which are funded by the same powerful interests that supported that delay) struck a serious blow to the interests of every day working Americans who are neither corporate nor wealthy.

The decision was no surprise, given the composition of the Court and Justice Alito’s maneuvering. It does, however, contain the seeds of a few possible silver linings, as well as the potential for unintended consequences. The Court emphasized the difference between the speech of groups of employees and the speech of an individual employee regarding terms and conditions of employment. The opinion suggests the latter has little if any protection while the former implicates issues of significant public concern. The potential for significantly greater protection for public employee speech by groups, and the unions representing them, may encourage unionization. Certainly, it offers a strong selling point for unions in organizing members.

While the Court found it unnecessary to decide whether collective speech is deserving of heightened scrutiny if restricted or compelled, language in the opinion could be used to support a claim for stronger protection for speech associated with collective bargaining. Thus, unions may have constitutional grounds to challenge state restrictions on bargaining.

The Court also suggested that unions might be able to decline to represent workers in grievance and disciplinary proceedings if they do not pay either union dues or a representation fee. This possibility poses a dilemma for unions.  Do they decline to represent these individuals, perhaps creating hostility toward the union, or represent them in hopes of convincing them that membership is worthwhile? Further, either position may influence existing union members to drop or retain their membership.

As for private sector fee requirements, the opinion suggests, but does not decide, that the First Amendment is not implicated by statutory schemes that allow, but do not require, unions and employers to negotiate fee obligations for nonmembers.  Nevertheless, one wonders if this Court will find a way to strike down the private sector laws in a future challenge that will certainly be funded by the same groups that brought Janus, despite the state action doctrine.

The Court opined that there is no question that compelling the union to represent all workers exclusively is constitutional, despite its “significant infringement on associational freedoms that would not be tolerated in other contexts.” Given the remainder of the opinion, which diminishes, if not obliterates any distinction in First Amendment doctrine between the labor relations system and other settings, it is not so clear why that is the case.  Some unions may decide to challenge the constitutionality of exclusive representation, a system that has substantial benefits for employers.

As for unintended consequences, the majority seems particularly disturbed by compelled speech, offering the possibility of future challenges to a wide variety of government requirements that force individuals to pay fees that are used for objectionable purposes.  The bar dues and student fees previously upheld on the basis of Abood, as well as schemes such as mandatory auto insurance, homeowners’ association dues, licensing requirements, pension contributions, and even taxes may be at risk of legal challenge.  While the majority, without hostility to these mandates, may uphold them as justified by governmental interests, costly litigation and interim uncertainty will occur.

Finally, the majority finds the interest in labor peace which justified union fees in Abood to be of little weight. In light of the awakening of public employees evidenced by the recent teachers’ strikes in red states that do not allow collective bargaining, the powerful interests that support restrictions on unions may come to regret this rejection of the importance of labor peace.

In a democracy, powerful forces can only oppress citizens for so long before resistance arises. The teachers’ strikes provide contemporary evidence of that phenomenon. The National Labor Relations Act was enacted in the 1930s to quell labor uprising. The Janus decision, along with the May decision in Epic Systems v. Lewis, may hasten the arrival of a similar time of reckoning.