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Janus v. AFSCME Argument Today (Updated)
Michael Ramsey

The Supreme Court hears argument today in Janus v. AFSCME, the union dues case.  The question presented is "Whether Abood v. Detroit Board of Education should be overruled and public-sector 'agency shop' arrangements invalidated under the First Amendment."

As I've mentioned earlier, this case appears very problematic from an originalist perspective.  Commentary generally assumes that the five center-right Justices are inclined to hold that compelled payment of union dues to public sector unions violates the freedom of speech.  The argument is that compelling an individual to give financial support to an entity that takes public positions on matters of public concern is effectively unconstitutional compelled speech.  Abood held (to oversimplify) that this is sort of true and sort of not true, depending on what positions were being taken.  The project in Janus is to get rid of the Abood intermediate position and hold that such compelled payments are always unconstitutional.

The problem from an originalist perspective is that it's not clear (and certainly not demonstrated in the briefs in Janus) that the original meaning of the First Amendment says anything about compelling payments (as opposed to compelling speech).  As Eugene Volokh and Will Baude point out in an interesting amicus brief, taxpayers are routinely compelled to pay money to the government, which uses some of that money to fund speech with which the taxpayers disagree (see further discussion from Professor Volokh here; also here from Eric Segall).  No one thinks that poses a First Amendment problem.  The government could collect taxes from Mr. Janus and then pay that money to the AFSCME union, with the AFSCME union using the money to fund its speech with which Mr. Janus disagrees.  If that arrangement is constitutional (and surely it is), then why would it be unconstitutional if the government authorizes AFSCME to collect money from Mr. Janus directly?

This argument proves a little less conclusive than Professors Volokh and Baude may think, because if "the freedom of speech" drew this distinction at the relevant time, it shouldn't matter whether we now find it a bit irrational.  To an originalist, constitutional rights come with the extent and limits recognized at the time of adoption, whatever we may now think of them.  But that observation highlights the crucial point: no one (so far as I am aware) has shown that compelled payments were understood as contrary to "the freedom of speech" at the relevant time.

Of course, no one has shown that compelled payments are consistent with "the freedom of speech" either.  But as Volokh and Baude argue, Abood held that some compelled payments are consistent with the freedom of speech.  To overrule that conclusion, the Court would seem to need some evidence it was wrong -- and an originalist should need some originalist evidence.

The reasons that Janus is a problem for originalism, then, it that the originalist-oriented Justices seem likely to overrule Abood without any originalist reasons for doing so. That outcome, if it occurs, weakens originalism by suggesting that it is just a tool for conservative results, to be discarded when it does not lead to conservative results.  Originalism would emerge much stronger if Janus came out the other way (or if at least someone in the majority in Janus explained its originalist foundation).

UPDATE:  According to SCOTUSblog, Justice Gorsuch said nothing in oral argument, an interesting development.  But also according to SCOTUSblog, the union's attorney tried to appeal to Gorsuch by "warn[ing] of an 'untold specter of labor unrest throughout the country' if Janus prevails."  I don't know Gorsuch personally, but that sounds like the wrong approach.  I think you need an originalist argument to make a difference here.