June 28, 2018 10:02AM

Janus: Why It Was Proper (and Necessary) to Overturn Old Precedent

On closer inspection of yesterday’s Janus v. AFSCME decision, the Supreme Court looks to have updated and clarified its decisional framework for addressing the age‐​old matter of stare decisis – deference to old precedents — a framework that largely mirrored Cato’s amicus brief in this landmark case. Properly understood, stare decisis doesn’t demand that courts blindly follow decisions that are no longer viable, but instead imposes a special duty to overturn faulty precedents in constitutional cases. The Janus majority both recognized and embraced this weighty responsibility.

Justice Samuel Alito’s decision set forth five important factors to consider when deciding whether to follow precedent: 1) “the quality of Abood’s reasoning”; 2) “the workability of the rule it established”; 3) “its consistency with other related decisions”; 4) “developments since the decision was handed down”; and 5) “reliance on the decision.” Although both owe much to Chief Justice John Roberts’s pithy concurrence in Citizens United, the similarities between the Janus factors and those laid out in Cato’s brief are striking.

Abood v. Detroit Board of Education (1977) was so poorly reasoned that, as the Court observed, proponents of upholding the case “implicitly acknowledge[d] its weaknesses by forwarding alternative justifications.” Chief among these justifications was the attempt to borrow legal rationales from Pickering, a case completely unrelated to Abood’s original reasoning. The Court found there to be “no good reason, at this late date, to try to shoehorn Abood into the Pickering framework,” and that “[e]ven if that were attempted, the shoe would be a painful fit.” But defenders of agency fees had little choice but to make this argument, since the two cases that Abood was actually supposed to be based on (Hanson and Street) both managed to avoid rendering a decision on First Amendment grounds. Cato’s brief conspicuously made these points, and the Court detected these same inherent flaws when deciding the case.

The Abood standard has also proven to be unworkable, with the distinction between chargeable and nonchargeable expenditures presenting the thorniest issue. Chargeable expenditures are those supposedly nonpolitical expenses that nonmembers could be validly forced to pay for under Abood, but in the context of public‐​sector unions, collective bargaining and political action are practically indistinguishable. Again the proponents of state‐​union compulsions advanced a self‐​defeating argument, with the Court observing that “[n]ot even the parties defending agency fees support the line that it has taken this Court over 40 years to draw.”

Next, what Cato’s brief recognized as one consideration the Court’s decision split into two, first considering the factual developments since Abood and then moving onto the case’s legal inconsistency with the overall body of First Amendment jurisprudence. As for the former, the Court took notice that Abood was decided “against a very different legal and economic backdrop” when “[p]ublic-sector unionism was a relatively new phenomenon.” Such considerations were again advanced by Cato, arguing that the Court should “look back on the period of time since the precedent was established and inquire ‘whether facts have so changed … as to have robbed the old rule of significant application or justification.’”

And regarding Abood’s place within the First Amendment canon, the Court once again found the decision to be “an anomaly,” commenting that it “particularly sticks out when viewed against our cases holding that public employees generally may not be required to support a political party.” While Cato’s brief instead chose to focus on the weakness of the labor peace rationale in justifying an infringement on individual’s free speech rights, the overall conclusion remained the same; as the great legal thinker Big Bird would have observed, “one of these things is not like the others.”

Finally, the Court paralleled Cato’s brief in adjudging that any reliance interests in Abood were insufficient to prevent the case from being overturned. While Cato argued both that there could be no valid reliance interests in the deprivation of First Amendment rights and that overruling Abood would impose no special hardship on labor contracts, the Court went even farther. It summarized the litany of holes in the counterargument thus: “the uncertain status of Abood, the lack of clarity it provides, the short‐​term nature of collective‐​bargaining agreements, and the ability of unions to protect themselves if an agency‐​fee provision was crucial to its bargain all work to undermine the force of reliance as a factor supporting Abood.”

As the Court has recognized for decades, stare decisis – at least in principle — “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Far from constituting a hindrance, the newly elucidated Janus framework has the potential to advance these noble objectives by providing both judges and practitioners with a stable, logical system for determining when adherence to the Constitution mandates abandoning erroneous precedent.