Was the Janus decision a proxy fight for Roe?
Wednesday, May 4, 2022 - Posted by Rich Miller
* Springfield’s Bishop Paprocki connected the Janus v. AFCSME and Roe v. Wade decisions four years ago…
* But Bloomberg political reporter Gregory Korte saw something else back then: A preview. Korte laid it out last night in a Twitter thread…
It was the last day of the term, and the first case was Janus v. American Federation of State, County and Municipal Employees. The issue was whether public employees could be compelled to join a union.
Justice Alito presented the opinion of the court.
The first issue that Alito had to confront was that the court previously decided in Abood v. Detroit Board of Education that these “agency fees” were constitutional. There was no question the precedent was directly on point.
But Alito outlined why stare decisis did not apply.
Alito: “The State’s extraction of agency fees from nonconsenting public sector employees violates the First Amendment. Abood erred in concluding otherwise, and stare decisis cannot support it. Abood is therefore overruled.”
Alito laid out four factors that he justified overruling precedent:
(1) “Abood was poorly reasoned, and those arguing for retaining it have recast its reasoning.”
(2) “Abood’s lack of workability also weighs against it.”
(3) “Developments since Abood, both factual and legal, have ‘eroded’ the decision’s ‘underpinnings’…”
(4) “Reliance on Abood does not carry decisive weight. The uncertain status of Abood, known to unions for years; the lack of clarity it provides…”
And so at this point I started thinking what you might be thinking: These are all, to a greater or lesser extent, conservative critiques of Roe over the years.
Justice O’Connor, e.g., famously said in 1983 that Roe’s trimester framework “was on a collision course with itself.”
I’m convinced that Justice Kagan also saw Alito’s opinion as laying the groundwork to overrule Roe. She delivered a vigorous dissent:
Rarely if ever has the Court overruled a decision - let alone one of this import - with so little regard for the usual principles of stare decisis. There are no special justifications for reversing Abood. It has proved workable. No recent developments have eroded its underpinnings. And it is deeply entrenched, in both the law and the real world. More than 20 States have statutory schemes built on the decision. Those laws underpin thousands of ongoing contracts involving millions of employees. Reliance interests do not come any stronger than those surrounding Abood. And likewise, judicial disruption does not get any greater than what the Court does today. I respectfully dissent.
Again, it was easy to see Janus as a proxy fight for Roe in Kagan’s dissent:
“Abood is not just any precedent: It is embedded in the law … in a way not many decisions are.”
More Kagan: “There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this Nation’s law — and in its economic life — for over 40 years.”
Fast forward to 2022. Politico’s @joshgerstein gets a tremendous scoop with an almost unheard of leak of a draft opinion that would overrule Roe.
Alito is the author. On page 39 of the draft, Alito cites Janus as precedent (!) for overruling Roe, for many of the same reasons.
No Justice of this Court has ever argued that the Court should never overrule a constitutional decision, but overruling a precedent is a serious matter. It is not a step that should be taken lightly. Our cases have attempted to provide a framework for deciding when a precedent should be overruled, and they have identified factors that should be considered in making such a decision. Janus v. State, County, and Municipal Employees, 585 U. S. (2018) (slip op., at 34-35); Ramos v. Louisiana, 590 U.S. (2020) (KAVANAUGH, J., concurring in part) (slip op., at 7-9).
In this case, five factors weigh strongly in favor of over- ruling Roe and Casey: the nature of their error, the quality of their reasoning, the “workability of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.
Again, I’m no constitutional lawyer, but it was clear even to me that the conservatives on the court were engaged in a long-term effort to dismantle Roe and have been laying bread crumbs for years.
Again, the draft is here. The Janus decision is referenced five times.
* The irony, of course, is that Gov. Bruce Rauner not only helped facilitate the Janus case, he signed (after much hemming and hawing) HB40, which, among other things, removed Illinois’ Roe v. Wade “trigger” language from state statutes.
- Arsenal - Wednesday, May 4, 22 @ 11:51 am:
I see the parallel, but also those four factors are kinda naturally the things you’d look at when reverse-engineering reasons to overturn decades old precedent. They may be right or wrong (I think mostly wrong in both cases), but those are four of the biggest things you should consider.
I’m more surprised by that Paprocki tweet. Guy is just a standard issue Republican, I guess.
- Roadrager - Wednesday, May 4, 22 @ 11:51 am:
So the governor who loudly proclaimed he was going to turn around Illinois’ finances and sent them deeper into the dumper by his actions also accidentally enabled the outlawing of abortion while publicly standing up for it. You have to admire the consistency, at some level.
- low level - Wednesday, May 4, 22 @ 11:54 am:
In Janus, the court rules unions must represent employees who dont pay dues. In other words, those who keep the fees still get represented. They get something for nothing.
Talk about welfare.
So of course if they decide something in such obviously unAmerican fashion, anything else is fair game to their way of thinking.
- Grandson of Man - Wednesday, May 4, 22 @ 12:12 pm:
The “freedom” folks sure love to take people’s rights away.
This election is going to be about rights, women’s rights, union rights, etc. Do we want to backslide like red states and ban abortions, ban mention of LGBT and teaching of racism in schools,
ban books, strip union rights and the lot?
- JS Mill - Wednesday, May 4, 22 @ 12:14 pm:
=In Janus, the court rules unions must represent employees who dont pay dues. In other words, those who keep the fees still get represented. They get something for nothing.=
This is the part of the ruling I never understood. I dont understand how a union can be compelled to represent non members?
- Lurker - Wednesday, May 4, 22 @ 12:15 pm:
I hope Illinois Times tracks Janus down to see how he feels about having an influence on Roe. That’d be an interesting article.
- Ares - Wednesday, May 4, 22 @ 12:19 pm:
Supreme courts can always overrule their prior precedent, as was (finally) done in the Dred Scott decision and the Korematsu decision (upholding Japanese American internment). Even supreme courts get it wrong, more often than they care to admit.
- TheInvisibleMan - Wednesday, May 4, 22 @ 12:23 pm:
“Alito outlined why stare decisis did not apply.”
Sometimes I wonder if people are ready for what this court is going to do. And how quickly it could happen.
With abortion rights now gutted, the next step is going to be cases that redefine the ability direct even more public funds to their preferred religious institutions.
That doesn’t even touch this new courts views on the concept of the Unitary Executive.
Maybe it’s time for more people to start looking at those old pictures from Iran in the 1960s.
We aren’t special. It can happen here, and we are in fact at the doorstep right now.
- Steve - Wednesday, May 4, 22 @ 12:24 pm:
-I’m convinced that Justice Kagan also saw Alito’s opinion as laying the groundwork to overrule Roe-
Good catch by Rich. Justice Kagan knew the danger of throwing away precedent . Kagan voted with Alito to keep non-unanimous verdicts constitutional. It appears Kagan is well aware of the long game.
https://en.wikipedia.org/wiki/Ramos_v._Louisiana
- ArchPundit - Wednesday, May 4, 22 @ 12:28 pm:
Dred Scott and Korematsu were not overruled by the court. Dred Scott was made moot by the passage of the 13th & 14th Amendements. Korematsu has never been overruled even though it’s generally not considered something that would be used as precedent anymore, but it’s not overruled. Even when the Supreme Court overrules precedent they often do it in a round about way to maintain stare decisis.
- SWIL_Voter - Wednesday, May 4, 22 @ 12:29 pm:
SCOTUS justices are just unaccountable politicians. They always have been. It’s about time we started treating them as such. No more lifetime appointments at a minimum, but preferably we should set aside the fantasy they’re impartial jurists and take away their power altogether. They are an institution that has long since outlived it’s usefulness, if they ever had a use.
- MisterJayEm - Wednesday, May 4, 22 @ 12:31 pm:
The phrase “settled law” no longer has any meaning in the United States.
– MrJM
- Norseman - Wednesday, May 4, 22 @ 12:39 pm:
Thank you ArchPundit for the education.
- Donnie Elgin - Wednesday, May 4, 22 @ 12:48 pm:
“The “freedom” folks sure love to take people’s rights away”
Ironically if Roe is reversed citizens will have freedoms returned to them - as the Reproductive rights/abortion access authority would be returned to the people and their elected representatives in each state.
- Nick - Wednesday, May 4, 22 @ 12:50 pm:
“proxy” is probably the wrong word. No one launched Janus to see if the courts were willing to eject previous precedent for a fight on abortion they had been waging for more than three decades.
But do I see parallels? Absolutely.
- low level - Wednesday, May 4, 22 @ 12:55 pm:
==Dred Scott decision and the Korematsu decision==.
You having to go that far back shows the weakness of your argument, which ArchPundit demonstrated was false.
Youd be better off bemoaning the leak then going into these types of comparisons, although Im not surprised a so called “conservative” is so far off the mark.
- Sir Reel - Wednesday, May 4, 22 @ 1:01 pm:
Republicans always argue that Democrat nominated judges will be “activist” judges making law through their decisions. Yeah right. It’s the democrats that ignore precedent and wanna make law through the courts. Yeah right.
- Amalia - Wednesday, May 4, 22 @ 1:05 pm:
the opinion also references the gun case McDonald. feeling sick that Illinois has contributed to the reversal of 50 years of rights.
- Nick - Wednesday, May 4, 22 @ 1:06 pm:
To be fair with Korematsu it was at least ‘condemned’ by the Supreme Court, ironically in the case upholding Trump’s travel ban. But in terms of legalese it was not actually formally considered ‘overruled.’
- ArchPundit - Wednesday, May 4, 22 @ 1:21 pm:
Nick–that’s true and Korematsu hasn’t been largely because we haven’t done anything as extreme as that since.
I think if you look at Plessy which is practically overruled by Brown, the Court still went out of the way to base the decision on due process over equal protection alone when equal protection was clearly the intent of the writers of the 14th.
- Nick - Wednesday, May 4, 22 @ 1:23 pm:
Oh yeah, wasn’t disagreeing with you to be clear.
Just adding where this idea of Korematsu being overturned came from.
- ArchPundit - Wednesday, May 4, 22 @ 1:27 pm:
Ignore my last bit there–misremembered it. Not just due process (sigh)
- Candy Dogood - Wednesday, May 4, 22 @ 1:32 pm:
Great reporting, Rich.
The effort to impose one’s religious views on others and similar bigotry has a long memory. This is just a stepping stone in a effort to continue to take minority opinions rooted in hateful religious vigor and strip basic freedoms and human rights from others.
If we’re able to write history in a few hundred years, Alito will be presented with the same context of those who burned teenaged children as witches. Move over, Dred Scott. We’re going to rack up some more horrific Supreme Court decisions.
- low level - Wednesday, May 4, 22 @ 1:59 pm:
==opinions rooted in hateful religious vigor and strip basic freedoms and human rights from others.==
That is my ultimate take as well. And if they dont like the outcome of an election, they will go to the courts or attempt a coup as they did on Jan 6, 2021.
- City Zen - Wednesday, May 4, 22 @ 2:00 pm:
==I dont understand how a union can be compelled to represent non members?==
Exclusive
Bargaining
Rights
- Oswego Willy - Wednesday, May 4, 22 @ 2:03 pm:
I appreciate this post, Rich. Very much so.
The long game of using the Court’s ability to undermine rights by craftily connected decisions shows a thoughtfulness to a bigger “next step” picture, well outside deciding one case on its own, which I get within a law constraint, but it’s apparent it’s guided by a policy want as well.
- City Zen - Wednesday, May 4, 22 @ 2:10 pm:
==They get something for nothing.==
Actually, in exchange for representing those few getting “something for nothing”, one union gets exclusive bargaining rights over the entire working unit. I would hardly describe a monopoly as “something for nothing.”
- Steve - Wednesday, May 4, 22 @ 2:18 pm:
Alito, Kavanaugh, and Gorsuch have administrative law on their radar.
https://newrepublic.com/article/158348/elena-kagans-fiery-defense-administrative-state
- Todd - Wednesday, May 4, 22 @ 2:26 pm:
Steve — yes they do and I hope we get a majority to strike down Chevron and limit administrative rule making
- Jocko - Wednesday, May 4, 22 @ 2:35 pm:
==one union gets exclusive bargaining rights over the entire working unit.==
And yet the entire crux of Janus’s argument was his belief he could negotiate a better salary…but bailed the second he won the opportunity to. Funny that.
Janus got played by Rauner…who’s about to get played by Alito.
- Crispy - Wednesday, May 4, 22 @ 3:19 pm:
Yes, and this is only the start of what the right-wing activist majority (containing several notable perjurers–or at least, extreme stretchers of the truth) is planning to perpetrate on the American public. Voting rights are already mostly gone, and reproductive rights are clearly going. They’re taking a crack at gun control (N.Y. State Rifle & Pistol Assoc. v. Bruen) and the administrative state (American Hospital Association v. Becerra) yet this term as well. After that, it’s onward to Gilead.
Also, I 100 percent agree with Candy Dogood at 1:32. Alito is our own home-grown Savanarola.
- low level - Wednesday, May 4, 22 @ 3:25 pm:
Having ruled that Roe was so wrongly decided, so egregious that justice itself mandates its overturning, can we now assume that Republican legislators will now support neo natal care for poor women, food stamps for impoverished kids, or affordable quality health cate? Or will poor mothers and infants have to pull themselves up by their bootstraps?
Thats why I left the so called “pro life” movement. They arent “pro life” at all.
- Ares - Wednesday, May 4, 22 @ 3:44 pm:
Any ideas of how to use Justice Alito’s reasoning to “undo” the Shelby County and Citizen’s United decisions, w/o Congressional involvement?
- lone liberal - Wednesday, May 4, 22 @ 4:17 pm:
don’t be fooled they are not pro-life but rather pro-birth…