Tuesday, April 17, 2018

Will Justice Gorsuch Give us a June Surprise?

By Eric Segall

The Justices who sit on the United States Supreme Court are flesh and blood people too.  Many court commentators, scholars, and pundits often forget that the Justices are flawed just like the rest of us and sometimes act in accordance with their feelings as much as what they perceive the law to require.  It is possible that for reasons having little to do with the law but a host of other factors, Justice Neil Gorsuch may surprise many people in an upcoming important case involving the alleged free speech rights of public-sector union employees.


Before talking about that case, here is a possible example of a Justice casting an important vote at least partly because of complex emotional factors.  When Chief Justice Roberts voted to uphold the individual mandate as a valid tax in the first Obamacare case, many people were shocked.  Court watchers offered different theories to explain why the Chief would go out of his way to uphold President Obama’s most important piece of legislation (when the other four conservative Justices voted to strike down the law in its entirety). Many people thought that the Chief was concerned that invalidating the ACA just a few months before people went to the polls would damage the institutional prestige of the Supreme Court.  Others thought that Roberts simply voted in a way consistent with his minimalist approach to constitutional adjudication that he advocated during his confirmation hearing.  Others were simply flummoxed. 

I have previously suggested that one factor that may have gone into Roberts’ thinking, either consciously or subconsciously, was his desire to change the conversation about how Justice Kennedy was the most important jurist in the land.  In the months leading up to the case, the conventional wisdom was that this was the Kennedy Court.  By being the only conservative to vote to uphold Obamacare, Chief Justice Roberts changed that narrative. As one commentator put it after the case was decided, “I don’t think anyone predicted that the law would be upheld without the support of Justice Anthony Kennedy, almost always the Court’s crucial swing vote.”

Although many Court watchers are extremely skeptical about such non-legal explanations, given the huge stakes of the Obamacare case, the fact that the Chief seems to have changed his vote at the last minute, and other normal human emotions, it is quite possible that Roberts’ relationship with Justice Kennedy could have been a factor in his deciding not to strike down the ACA. Dahlia Lithwick, the Supreme Court reporter for SLATE thought my theory interesting enough to devote a podcast to it.

I am not the first person to come forward with non-legal explanations for the votes of Supreme Court Justices.  Many conservatives suggested that Justice Kennedy’s votes in abortion and church and state cases resulted at least in part from his desire to please the northeastern liberal elite establishment as well as the New York Times and the Washington Post.  I have never thought that to be true, but of course the complexities that go into the Justices’ swing votes in the most important cases may have as much to do with their emotions as logic or law.  The Justices have life tenure and their decisions cannot be reviewed. They are not robots free from human biases and needs. Professor Jacob tenBroek, a famous legal realist Court scholar, once remarked that “constitutional questions, are as much studies in personnel and in judicial psychology as they are problems in law.”

Now on to Justice Gorsuch. In this term’s Janus v. AFMSCE, the Supreme Court is revisiting the issue whether state statutes that require public sector employees to pay unions for their collective-bargaining-related activities violate the First Amendment. Some employees who don’t want to join or support unions argue that these payments fund political and other forms of speech with which they disagree, thereby violating their right to free speech. The states argue that public-sector union bargaining-related activities benefit all employees, and, in any event, non-consenting workers can engage in as much and any kind of counter-speech as they want against the union’s activities, so their free speech rights are fully intact.

In Abood v. Detroit Board of Education, decided over thirty years ago, a unanimous Supreme Court held that imposing these charges on state employees did not violate the First Amendment provided the money is used for collective bargaining purposes, not political speech (for which only willing union members may be charged). A few years ago, a much more conservative Court limited Abood’s reach in a case involving quasi-state workers providing hospice care. These Justices seemed sympathetic to the argument, rejected in Abood, that all public-sector employer-union bargaining raises ideological issues.

The next year the Court granted certiorari in a similar case. But then Justice Scalia passed away, the Court deadlocked 4-4, and the lower court decision applying Abood was affirmed. This Term the Justices granted certiorari in Janus to decide whether Abood should be overturned and whether mandatory public-sector union charges--even when reserved for bargaining-related activities--should be held unconstitutional.

The stakes in this case for pubic unions are substantial. Unions use mandatory fees to bargain for better wages and working conditions for all workers, even those who don’t join the union Also, the states that require the fees know that they only have to negotiate with the officially designated representative of all the workers. Twenty-three states and the District of Columbia impose such fees.

On the other hand, many states do not require non-union members to pay mandatory fees. One amicus brief in Janus suggests that preventing states from imposing these fees will not materially impair public sector unions. Although I do not believe that significant First Amendment interests are at stake because of the imposition of these fees, and neither do conservative First Amendment experts Eugene Volokh and Will Baude, many other scholars argue that requiring state workers to pay union fees requires them to subsidize speech with which they disagree.

Just about everyone is expecting Justice Gorsuch to vote with the conservatives, and overturn Abood.  But I am not so sure.  He was uncharacteristically silent during the oral argument. Moreover, as I wrote here, there are strong stare decisis reasons not to overturn Abood.  It would not be hard for Justice Gorsuch to say that he would have voted differently in the first instance but respect for precedent requires him to affirm Abood.  But why would he do that? 

Maybe Gorsuch would like to change the narrative that he is nothing but a Scalia/Thomas clone who always votes or almost always votes in lockstep with the conservatives and the Republican Party. Gorsuch just completed his first year on the bench and the reviews from conservatives have been uniformly sparkling while liberals, including this author, have been extremely critical.  Criticizing everything from his bad writing, to his originalist hypocrisy, the expectation among left-of center and liberal media is that Gorsuch is an ideologue who will just be one more reliable right-wing vote.

There is of course also the problem that Justice Gorsuch is on this Supreme Court only because this Senate Majority Leader stole the seat from President Obama.  Everyone knows that Merrick Garland would have voted with their liberals to reaffirm Abood.  If Gorsuch sides with his conservative colleagues to reverse the case, there is no doubt that the decision will be deemed illegitimate by many on the left.  Gorsuch could dramatically change the narrative of his career by voting not to reverse Abood.

I am not suggesting that he would do so if he was convinced the law required a different result, just as I am sure Chief Justice Roberts believed the position he espoused in NFIB was correct.  But of course, the Justices have great discretion in deciding these difficult legal cases.  Justice Gorsuch could easily and not controversially justify a vote for the states in Janus by relying on the doctrine of stare decisis.  If he did that, he could write an opinion advocating for the rule-of-law values he claims to take so seriously. Additionally, there is no legitimate originalist argument to support shredding over 20 state laws imposing fees for bargaining-related activities.  If Justice Gorsuch were to anchor his vote in originalism and stare decisis concerns, he would prove his critics wrong and do the right thing all at the same time.

Supreme Court Justices are people just like the rest of us.  Although they hold their seats for life, they want to be considered good at their jobs and principled decision-makers.  Don’t be surprised if Justice Gorsuch uses the Janus case to demonstrate that he is not just a clone of the late Justice Scalia.