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Some Further Thoughts on Janus and Precedent
Will Foster

[Editor's note: This guest post is by Will Foster (Walter Payton College Prep, Chicago), whose earlier essay on the Janus case we noted here].

In “Why Janus Is Indefensible on Neutral Principles,” previously featured on this blog, I argued that the Supreme Court’s 5-4 decision in the Janus v. AFSCME union fees case last June was impossible to defend using ostensibly neutral methods like originalism or stare decisis. I continue today to adhere to my view that the original meaning of the First Amendment both did not protect “symbolic speech” and did not protect against speech compulsions. Nevertheless, I may have been too quick to dismiss the possibility of a precedent-based argument for Janus. I now believe such an argument may well succeed, and, assuming that the Constitution’s original meaning allows reliance on precedent, may even prove acceptable to a committed originalist.

In my paper, I charged the conservative majority in Janus with incoherence. How in the world could they honestly place so much reliance on case precedents to support the overruling of a precedent? The court overruled Abood v. Detroit Board of Education (1977) to the extent that Abood had allowed mandatory union fee collection to continue for non-overtly-political purposes, but retained Abood’s general conclusion that mandatory union fees for non-members raised serious First Amendment concerns. If Abood wasn’t trustworthy on the former point, why was it trustworthy for the latter? The Janus majority never really explained. Nor did they explain why they took so many older precedents as correct without any analysis while subjecting Abood to some seriously exacting scrutiny.

But this fall I read Judge Amy Coney Barrett’s 2017 Notre Dame Law Review piece on precedent, entitled “Originalism and Stare Decisis.” Barrett pointed out that judges (even originalist ones) tend to maintain a practice of “assuming -- without deciding -- that all surrounding, unchallenged [precedent] is correct” (p. 1941). In other words, judges often take doctrine that no party has challenged as arguendo correct, and only then proceed with, say, their stare decisis analysis of a particular precedent that one of the parties wants the court to overrule. Barrett seems to believe that this judicial practice is constitutional.

Certainly, this practice of “assuming without deciding” is commonplace in the jurisprudence of Justice Thomas, who joined the majority opinion in Janus and is known as the Supreme Court’s most ardent originalist. Thomas frequently writes concurring opinions stating that he voted based on his reading of the court’s unchallenged precedents, even though he doubts the correctness of the precedents as an original matter and would be open to hearing a party’s challenge to them. Just last term, for instance, Thomas wrote the following in his Murphy v. NCAA concurring opinion: “I join the Court’s opinion because it gives the best answer it can to [the severability] question, and no party has asked us to apply a different test. But … our modern severability precedents are in tension with longstanding limits on the judicial power. And, though no party in this case has asked us to reconsider these precedents, at some point, it behooves us to do so” (pp. 2, 6).

In any event, this all made me realize something I’d completely missed when writing my Janus article: There was in fact something special about the doctrines on which the majority uncritically relied -- no party had challenged them. In particular, the principle that at least some union “agency fees” created First Amendment concerns was, to the best of my knowledge, not seriously challenged by any party (although an amicus brief did contest it). Certainly, the principal dissent in Janus did not challenge this premise. The central dispute between the parties was whether all or only some agency fees violated the First Amendment as construed in the court’s many unchallenged free expression cases. To put the point differently: The court was asked to assume that all its First Amendment doctrine except for a particular claim in Abood was valid, and from there analyze the correctness of the part of Abood challenged by the petitioner.

Perhaps, then, we can view Justice Alito’s majority opinion in a more favorable light than I advocated in my article. Although the AFSCME’s brief did argue that the First Amendment’s original meaning provided essentially no free speech protection for public employees, no party actually asked the court to overrule any of the cases that rest on the contrary theory. This being so, it is at least plausible to argue that the justices were entitled to take those unchallenged cases as arguendo correct in casting their votes. As Justice Alito wrote: “Taking away free speech protection for public employees would mean overturning decades of landmark precedent … Respondents presumably want none of this, desiring instead that we apply the Constitution’s supposed original meaning only when it suits them … We will not engage in this halfway originalism” (p. 19).

So my original argument against the Janus majority would really come down to a contention that justices are obligated to sua sponte overrule precedents that no party has challenged if they believe those cases were wrongly decided. I am doubtful that such an obligation exists, and clearly none of the nine Supreme Court justices believe it exists, either.

Once one assumes that uncritical reliance on unchallenged case law is permissible, Janus seems, at the very least, plausible. Justice Kagan’s dissent raised doctrinal arguments against the majority’s reading of certain accepted precedents, but the majority’s response to her arguments was no less plausible than the positions justices stake out every time there’s a decision. Perhaps, then, my criticism of the Janus majority was too harsh. Maybe they ultimately got it wrong (I express no opinion here), but they might not, contra my original article, have been utterly incoherent in their reasoning.

Of course, a conscientious originalist needs to ask whether the “assuming without deciding” method is consistent with the Constitution’s original meaning. If it’s unconstitutional for Supreme Court justices to ignore their own doubts about the correctness of certain established precedents, then it wouldn’t really matter that modern Supreme Court justices “assume without deciding” all the time. Maybe that modern practice, however widespread, is unconstitutional.

Nevertheless, there is more reason than you might expect to believe that this practice is permissible for legal formalists. As an initial matter, originalist scholars like John McGinnis and Michael Rappaport have argued at length that the original Constitution did not forbid the practice of stare decisis in constitutional cases. If, as McGinnis and Rappaport argue, it is permissible to refuse to overturn an incorrect precedent challenged by a party (e.g., if the social costs of overruling are too high), then it seems true a fortiori that originalist judges can refuse to overturn incorrect precedents unchallenged by any party.

Stephen Sachs has argued that precedent is “as if” law, requiring or at least permitting courts to ask as if the underlying law dictates one thing, even if a given judge thinks the underlying law dictates something else. Sachs has noted that this view of precedent can fit fairly comfortably with originalism, since it doesn’t replace original meaning with precedent but merely directs judges, in the course of deciding particular cases and controversies, to pretend a little bit. Whether this is legitimate for precedents directly challenged by a party is debatable, but it seems much more salutary when, as with much of the foundational doctrine utilized to reach the result in Janus, no party has challenged the precedents. Ultimately, our law is an adversarial system, and we don’t really expect judges to strain to consider arguments not briefed by the parties. The only reason why we might expect judges to do this is the intuition that the job of courts is to correctly “declare the law.” Under this view, it shouldn’t really matter what arguments the parties raise, or what the court has said in the past -- the law is what it is, and judges are supposed to fully research it and make their ruling accordingly. But few people really seems to believe this, and for good reason. Judging would become a virtually impossible task (not to mention a highly undesirable one) were judges forced to re-decide each tiny legal question de novo every time one came up in a case.

My new perspective on Janus seems to support the observation of UChicago’s Will Baude that American courts today generally practice “inclusive originalism.” That is, they rely on original meaning in the absence of precedent in an area, and, when they do rely on precedent, only do so because they believe reliance on precedent is permitted by the Constitution as originally understood. I think I’m becoming more and more converted to Professor Baude’s view every day. Originalism doesn’t necessarily need to always, or even usually, mean trawling for 18th century manuscripts or digging through Founding-era statute books. Maybe in some -- even most -- circumstances, a careful analysis of modern doctrine is enough. It might not look like originalism, but looks can be deceiving.

Incidentally, this line of thinking might provide a path for principled originalist justices to retain Roe v. Wade when another inevitable challenge comes, somewhere down the line. Assuming that the party challenging Roe’s validity did not challenge the Griswold v. Connecticut contraception case or any of the other pre-1973 cases that the Roe court relied on (or, for that matter, more modern due process cases like Lawrence v. Texas), it is possible that originalist justices could take Griswold and the other unchallenged cases as arguendo valid and attempt to re-justify Roe based on those precedents -- even without giving any precedential weight to Roe qua Roe. (I express no view here on whether such a defense of Roe would in fact be successful.) Many originalists argue that Roe is utterly indefensible under the actual original meaning of the 14th Amendment, and I think that is quite possibly true. Nevertheless, maybe original meaning shouldn’t be the end of the story, even for a committed originalist.

UPDATE:  Recently I was thrilled to learn that SSRN had, after "additional review," decided to allow my previously-removed paper "Why Janus Is Indefensible on Neutral Principles" to be posted on their site. Here is the link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3225542