At the end of every Supreme Court term, Amicus host Dahlia Lithwick discusses the session’s most important decisions with a panel of legal experts. This year, she chewed over the term—including Justice Anthony Kennedy’s retirement and how it will transform the court—with Slate legal writer Mark Joseph Stern and University of California, Irvine, law professor Leah Litman. What follows is a lightly edited excerpt from their 45-minute conversation.
Dahlia Lithwick: Let’s talk about the cases that came down in just the last couple of days. Mark, you spent much of the term dreading the Janus decision, which you knew was going to come down as it came down. This is the case that has to do with public sector unions and free speech. Can you just recount briefly what the court decided in the Janus case?
Mark Joseph Stern: Yes. About 22 states before this week allowed public sector unions—so think of teachers unions or police unions—to collect compulsory fair-share fees from nonunion members. What that means is that if you are a teacher in California, you didn’t have to pay full union dues. You didn’t have to pay money that the union would use to go lobby the Legislature on political matters, but you did have to pay these fair-share fees that would only cover the cost of the union’s work on your behalf. This money is going to fund negotiations for you and for your colleagues to help get you better benefits, better salaries.
The court ruled 41 years ago, in a case called Abood, that it was perfectly constitutional to have compulsory fair-share fees, because otherwise there’s really not a huge benefit to paying your union any money at all. There is a massive problem of free riders. A bunch of public sector employees can just free ride off all the good work the union is doing on their behalf and not help to fund it at all.
That balance was struck 41 years ago. It held fast until Wednesday, when in a 5-to-4 decision written by Justice Alito, the court overturned Abood, and in one fell swoop struck down fair-share fees in 22 states and ruled that nonunion members have to opt into paying any kind of dues. They can’t just opt out. The result is an absolute disaster for unions. It will kneecap them across the country. It will force them to divert a massive amount of money, and energy, and resources into trying to maintain their membership, which will probably be a futile process a lot of the time.
The whole thing is based on this really outrageous, almost laughable theory of the First Amendment that I think has anti-union, anti-labor ideology baked into it. What Justice Alito and the conservatives say is that it doesn’t matter that fair-share fees aren’t funding the union’s political activity, because everything a union does is actually political. Negotiating for better salaries, better benefits, more breaks, better health care, better child care, all of that, to Alito, is fundamentally political, because he claims there may be workers who want worse benefits, and lower salaries, and worse health care, and they have a fundamental First Amendment free-speech right not to subsidize expression on their behalf that is advocating for better benefits that they may not want. All fair-share fees are unconstitutional insofar as they are compulsory, and unions are now going to have to work much, much harder just to gather enough money to fund their work on behalf of public sector employees.
Lithwick: Justice Alito called those, “unpleasant transition costs,” but that’s about the extent to which he concedes that there’s any real blow to labor here?
Stern: Yes, that’s right. Alito dresses up his opinion as just a common-sense extension of recent precedent, because he has embarked on a yearslong campaign, pretty much since he joined the court, to undermine Abood with the obvious end goal of overturning it altogether and crushing public sector unions. During each of the oral arguments in these cases, his questions have just bristled with overt hostility toward unions.
That is a hostility we learned that Justice Kennedy shares during oral arguments in this Janus case. Justice Kennedy basically put on his Rush Limbaugh hat and bashed unions as creating this massive government spending, draining the public fisc. He is plainly just as much an enemy of unions as Alito is, and so these justices who in Citizens United said, “Oh well, we’re just allowing corporations and unions to go out and exercise their political power,” now turn around and say, “Oh well, we were really just talking about corporations, because unions, we hate you guys, and we’re going to hobble you as much as we possibly can.”
Lithwick: Leah, do you have anything to add to Mark’s gloss on Janus?
Leah Litman: Everyone should read Justice Kagan’s dissent, and put its final paragraphs above their mirror, and wake up to them in the morning. Get used to the world of “black-robed rulers” who will use the First Amendment as a weapon against social and economic regulation.
Lithwick: Leah, you’ve written frequently about the weaponizing of the First Amendment, about Masterpiece Cakeshop, and the anti-religious animus that Anthony Kennedy was able to smoke out there, and how that connects to the travel ban decision. Can you just summarize what the court did, having found anti-religious animus in the remarks of one commissioner in the Colorado Civil Rights Commission, the court blinkered itself to, I don’t know, hypothetical anti-religious animus from Donald Trump in establishing the travel ban?
Litman: Sure. In Masterpiece Cakeshop, the court said that the Colorado Civil Rights Commission didn’t adhere to the guarantee of religious neutrality because one commissioner had said, “It is despicable to invoke religion to harm others.” It was that remark that led the court to say that the commission’s proceedings did not display the necessary religious neutrality.
That set the stage for the court’s complete about-face in Trump v. Hawaii, in which you had not just one person but the person who was singularly responsible for enacting the ultimate policy, the entry ban, saying for years on the internet, on Twitter, in front of television, and anywhere he could, that he would like to impose a total and complete shutdown of Muslims entering the United States, that Islam hates us, that there is a Muslim problem, and so on. The court said, “You know what? This policy that was born of a process that was completely free of agency consultation and applies to several Muslim-majority countries, that isn’t sufficiently connected to the president’s anti-Muslim statements.”
Looking at those two things against one another, it is really hard not to see a stark disparity, which is the court found some subtle departures from religious neutrality in the statements of one commissioner in Masterpiece Cakeshop, whereas it completely turned the other way when you had the president of the United States campaigning on anti-Muslim statements and anti-Muslim policy for years, and out in the open, and ultimately crafted a policy that largely reflects it.
Lithwick: Another case I think we can class it under speech weaponized to effect all sorts of unanticipated ends is Becerra, the crisis pregnancy center case, which very much like Masterpiece is a case that’s nominally about religion, but then it’s about speech, but then ultimately it’s about some new magical thing like religious speech. Do you want to give us just the quick and dirty on Becerra?
Litman: Yes, although I can’t help myself but just drawing a parallel between Abbott and Mark’s point about Janus, which is that Abbott in a lot of ways goes back on the promises that the court made to us in a prior decision, Shelby County, in the same way that Janus goes back on some of the promises that the court made us in Citizens United. Citizens United said, “We are preserving the speech rights of corporations and unions.” Shelby County said, “There is no need to worry about the absence of pre-clearance because you can always prove discrimination under Section 2 of the Voting Rights Act, and if states are engaged in intentional discrimination, we will subject them to pre-clearance under section three of the Voting Rights Act.” Abbott makes it superhard to prove intentional discrimination because of the court’s complete deference and indulgence of states. Unless they basically come out and say, “This is about race,” the court is going to be OK looking the other way.
It’s kind of like Justice Alito put on the jacket that Melania wore to the Mexican border that said, “I don’t care. Do u?” The court is willing to turn the other way unless the state is going to come out and say outright that this is about race. We saw in so many cases that the court is just willing to indulge the fiction that it is not about discrimination against certain groups. That’s not going to get better. That’s going to get worse.
But to answer your question, Dahlia, about NIFLA v. Becerra, this is definitely another case about the so-called weaponized First Amendment. NIFLA involved two regulations of so-called crisis pregnancy centers, licensed clinics where the state asked the practitioners of these clinics to disclose the fact that the state would pay for abortions for certain women, and to give women information about where they might obtain information about state insurance for abortion, given that these clinics wouldn’t disclose the information themselves. There is also a regulation of unlicensed clinics, clinics at which there were no medical professionals, even though the clinics were offering services that looked loosely medical. The regulation required clinics to disclose that fact.
The court invalidated both of them on the ground that it was compelled speech. The state had argued, “We are regulating so-called professional speech, and it’s within our domain to regulate the content of people who either are professionals or pose as professionals in order to give people receiving those services information about them.” The court rejected that analysis and, in doing so, cast doubt on a lot of state regulations of professional speech. The court went out of its way to disagree with some of the court of appeal’s approaches to professional speech.
On top of that, the court offered what I think was frankly a ludicrous distinction with the court’s prior opinion in Casey. Casey had upheld some state regulations of abortion providers that required abortion providers to disclose other options that women had, such as carrying the pregnancy to term, and give the women information about how the procedure would work. Casey had justified that regulation on the grounds that it effectuated the state’s interests in protecting fetal life. That is, states have an interest in promoting their own message. They prefer childbirth to abortion, and they can make abortion providers give that message to their patients.
In NIFLA, the court comes around and says: “No, that regulation actually wasn’t regulating the safe interests in protecting fetal life. That was informed consent requirement. That was just requiring doctors to give information about a medical procedure, but this regulation of crisis pregnancy centers doesn’t concern a medical procedure.” Justice Breyer had the best line of the term in his dissent, which was just, “Really?” First, that’s not what the court said in Casey, and second, are you really going to say that birth does not involve any sort of medical procedure, but abortions do? Many women require serious medical care in order to have a safe childbirth, both for themselves and their child. To diminish that by saying, “Birth is just something completely separate,” is just not reflective of any of the science regarding the risks of the two choices and what women need and rely on in choosing them.
One more thing
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