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Elena Kagan’s dissent trashes Supreme Court as “black-robed rulers overriding citizens’ choices”

The justice accuses the conservative majority of “weaponizing the First Amendment.”

Justice Elena Kagan of the U.S. Supreme Court.
Justice Elena Kagan.
Alex Wong/Getty Images
Jen Kirby is a senior foreign and national security reporter at Vox, where she covers global instability.

The Supreme Court dealt a stunning blow to public sector unions in its 5-to-4 majority decision in Janus vs. AFSCME. Justice Elena Kagan, who voted in opposition along with the Supreme Court’s other liberals, didn’t hold back in her dissenting opinion, calling some of her colleagues “black-robed rulers overriding citizens’ choices.”

She declared, “The First Amendment was meant for better things.”

The Janus case involved “agency fees,” which unions charge to nonunion members, who end up still being covered by collective bargaining contracts. Justice Samuel Alito wrote the majority opinion, which argued that requiring nonunion members to contribute agency fees violated their First Amendment rights because unions are political organizations — and asking nonmembers to give money is compelling them to make a political statement.

In Kagan’s fiery dissent, she blasted her colleagues for overturning a decades-old precedent, Abood vs. Detroit Board of Education, and thereby unleashing “large-scale consequences” for public sector unions.

“There is no sugarcoating today’s opinion,” Kagan wrote. “The majority overthrows a decision entrenched in this Nation’s law—and in its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance.”

The Court’s majority does so, Kagan continued, “by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”

Kagan argued that the Abood precedent had struck a balance. The agency fees allowed nonunion members to contribute to collective bargaining and other actions that would benefit them. This let unions avoid the “free rider” problem: After all, why would anyone join a union if he or she could reap the benefits without having to pay any fees? At the same time, Abood said employees could not be compelled to contribute to a union’s ideological or political activities.

And Kagan argued that the decision to throw out Abood doesn’t pass muster:

But the worse part of today’s opinion is where the majority subverts all known principles of stare decisis. The majority makes plain, in the first 33 pages of its decision, that it believes Abood was wrong. But even if that were true (which it is not), it is not enough.

Kagan continued later in her dissent to discuss the real world consequences of the Court’s decision:

Over 20 States have by now enacted statutes authorizing fair-share provisions. To be precise, 22 States, the District of Columbia, and Puerto Rico—plus another two States for police and firefighter unions. Many of those States have multiple statutory provisions, with variations for different categories of public employees. See, e.g., Brief for State of California as Amicus Curiae 24–25. Every one of them will now need to come up with new ways— elaborated in new statutes—to structure relations between government employers and their workers. The majority responds, in a footnote no less, that this is of no proper concern to the Court.

She further noted the following:

Still more, thousands of current contracts covering millions of workers provide for agency fees. Usually, this Court recognizes that “[c]onsiderations in favor of stare decisis are at their acme in cases involving property and contract rights.” Payne, 501 U. S., at 828. Not today. The majority undoes bargains reached all over the country. It prevents the parties from fulfilling other commitments they have made based on those agreements. It forces the parties—immediately—to renegotiate once-settled terms and create new tradeoffs. It does so knowing that many of the parties will have to revise (or redo) multiple contracts simultaneously. (New York City, for example, has agreed to agency fees in 144 contracts with 97 public-sector unions. See Brief for New York City Municipal Labor Committee as Amicus Curiae 4.) It does so knowing that those renegotiations will occur in an environment of legal uncertainty, as state governments scramble to enact new labor legislation. See supra, at 23. It does so with no real clue of what will happen next—of how its action will alter public-sector labor relations. It does so even though the government services affected—policing, firefighting, teaching, transportation, sanitation (and more)—affect the quality of life of tens of millions of Americans. [emphasis added]

Laying out her case, Kagan bluntly wrote that the Court’s majority acted less on the law than a whim. The majority overruled Abood “for not exceptional or special reason, but because it never liked the decision.”

Kagan concluded that the majority’s decision amounts to turning “the First Amendment into a sword, and using it against workaday economic and regulatory policy.” This hasn’t been the first time the court’s majority has done so, Kagan wrote, adding as follows:

And it threatens not to be the last. Speech is everywhere—a part of every human activity (employment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance—including over the role of public-sector unions.

Read Alito’s majority decision and Kagan’s full dissent below or at this link.

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