Symposium: Janus’ radical rewrite of the First Amendment

Alice O’Brien is general counsel for the National Education Association, which filed an amicus brief in support of the union in Janus v. AFSCME.

The Supreme Court’s ruling in Janus v. American Federation of State, County, and Municipal Employees is politics, not law.

Today, the Supreme Court cast aside the interests of working people and their families, as well as the management concerns of 21 states, the District of Columbia, leaders of major cities, towns and school districts, and the views of constitutional scholars from across the political spectrum, to overrule Abood v. Detroit Board of Education. Abood, which has stood since 1977 for over forty years, formed the bedrock of much First Amendment law, and provided the foundation for strong and effective public-sector collective bargaining. The court’s ruling will harm working people and is doctrinally indefensible.

The Janus majority ruled that public employees have a fundamental First Amendment interest in not being compelled to support public-sector labor-management systems that states choose to erect. This is nonsense. The very same justices who struck down Abood today wrote the precedents declining to provide public employees any First Amendment protection at all when they are speaking at work as part of their jobs, in part on the ground that states as sovereigns have expansive powers to regulate their workplaces. As Justice Anthony Kennedy, joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, wrote in 2006 in Garcetti v. Ceballos, there is a difference of constitutional significance between an employee’s speech made as a citizen, which is protected by the First Amendment, and speech made as a public employee, which “the Constitution does not insulate … from employer discipline.”

The lower courts have largely taken Garcetti, and its predecessor precedent, 1968’s Pickering v. Board of Education,to mean that when educators speak out about employment matters at work, they (like all public employees) can be disciplined or fired. This is true no matter how valuable or meritorious their speech is. Whether speaking out against a lack of funding, supplies, books, classroom size, systemic discrimination or more, their free speech interests yield to what the court has viewed to be the public employer’s paramount interest in regulating its workplace.

Today’s decision sloughs off all those precedents as applicable only in one-off cases, when an individual employee asserts a First Amendment objection to being compelled to do her job. But as the majority itself admits, the Garcetti/ Pickering rules have been routinely applied, even by the court itself, to cases involving speech restrictions impacting many employees. Indeed, even though the First Amendment “has its fullest and most urgent application precisely to the conduct of campaigns for political office,” as the court held in 2014 in McCutcheon v. Federal Election Commission, the court has upheld broad restrictions on public employees’ political activities. See United Public Workers v. Mitchell; Civil Service Commission v. Letter Carriers. The Janus majority’s suggestion that in those cases the court actually applied something resembling the “exacting scrutiny” the court trains on fair-share fees does not withstand a moment’s scrutiny. See Mitchell (upholding the Hatch Act’s complete ban on public employee participation in political campaigns).

Rather than precedent or principle, what appears to drive the Janus majority is barely concealed animus toward public sector unions and their advocacy. Thus, the Janus majority writes that the growth of the public sector since 1977 raises the “political valence” of the fair-share fee issue, and it decries the fact that unions discuss such “sensitive political topics” as “climate change, the Confederacy, sexual orientation and gender identity, evolution and minority religions.” Why union speech on such issues has anything to do with what states choose to allow unions to bargain for in public employment, much less what states choose that feepayers can be charged for that bargaining, is never made clear, nor could it be.

The fact is that the Janus majority opinion is not about expanding the speech rights of public employees at all. It is about five justices constitutionalizing their disdain for the right of working people to come together to speak with a unified and strong voice. State choices about fair-share fees get no deference under Janus because they are viewed as artifacts of union power, not legitimate employer choices by government decisionmakers. Yet every other suppression of public-employee speech in the workplace gets the highest deference.

One searches in vain for a silver lining in today’s decision, some notion that the new union objector exception to Garcetti and Pickering will provide union supporters with additional protection as well. But on that score, Justice Elena Kagan’s dissent may well prove prescient:

Suppose a government entity disciplines a group of (non-unionized) employees for agitating for a better health plan at various inopportune times and places… . [W]hen actual cases of this kind come around, we will discover that today’s majority has crafted a “unions only” carve-out to our employee-speech law.

At bottom, Janus is yet another example of a court that has lost its way. This court searches for specks of religious discrimination buried in a bureaucracy when deciding whether LGBTQ people have the right to purchase wedding services (Masterpiece Cakeshop v. Colorado Civil Rights Commission), but buries its head in the sand when the president of the United States proudly boasts of his religious animus (Trump v. Hawaii). The court finds speech rights in flooding our political system with corporate and foreign money (Citizens United v. Federal Election Commission), but looks away from racially discriminatory voting systems. And today’s Janus decision sends the shocking message that even when a governmental action is deeply rooted in decades of reasonable legislative and governmental judgments, the justices may still upend it based on their own ideological views about the value of the underlying speech and association.

Our political system is straining to the breaking point. The court should be driving to the middle to stabilize and maintain our democracy and the court’s institutional integrity. Instead, thanks to the unprecedented Republican obstructionism that prevented President Barack Obama from appointing Chief Judge Merrick Garland to the U.S. Supreme Court, the court has veered right, taking down decades of legislative and judicial precedents. As all eyes turn to the U.S. Senate and its consideration of the vacancy that will be left by Kennedy’s retirement, Janus thus stands as an object lesson as to how very high the stakes of that battle will be.