“Weaponizing First Amendment? The Extent to Which Justice Kagan’s Claim is True”

By: Michael Peretz

Several high profile First Amendment cases came before the Court in its most recent session. While Masterpiece Cakeshop v. Colorado Civil Rights Commission was the most publicized case on the docket, the Court’s decision in Janus v. AFSCME  was arguably a more contentious case, as signified by the Court’s narrow 5-4 ruling, its impact on millions of employees, and the strongly worded dissent by Justice Elena Kagan against the conservative majority. In her dissent, Justice Kagan accused the conservative majority of using its interpretation of the First Amendment as justification to weigh into an important policy decision that should be made by the “people, acting through [their] state and local officials.” In fact, she went so far as to accuse the conservative majority of “weaponizing the First Amendment.”

This blog post briefly discusses the facts of Janus, presents the rationales behind both the conservative majority’s decision to overturn the court’s longstanding precedent in Abood v. Detroit Board of Education and Justice Kagan’s subsequent dissent, and then concludes by making a preliminary judgment on Kagan’s provocative stance.

The petitioner in Janus was an Illinois state employee whose work group was represented by a public-sector union. Mr. Janus refused to join the union as a full member and was considered a nonmember employee. Unlike other nonmembers, Mr. Janus refused to pay the mandatory “agency fee” charged to nonmembers (a percentage of the full-union dues) because he did not agree with many of his union’s positions, including those taken in collective bargaining. Accordingly, Mr. Janus was in violation of Illinois policy, originally upheld in Abood, which permitted public-sector unions to charge mandatory fees to nonmembers to cover activities “germane” to the union’s collective bargaining activities. The Court’s main holding in Abood was that the policy of requiring nonmembers to pay union dues did not violate the First Amendment, simply because nonmembers received a tangible benefit from the union’s representation of their interests during collective bargaining. Abood remained good law for forty-one years, until the conservative majority overturned it in Janus.

The conservative majority, consisting of Roberts, Kennedy, Thomas, Alito, and Gorsuch, found that Illinois’ “extraction of agency fees from nonconsenting public-sector employees violated the First Amendment.” When explaining its determination that Abood was inconsistent with standard First Amendment principles, the majority’s opinion, written by Justice Samuel Alito, held that the First Amendment protects “the right to eschew association for expressive purposes,” and that “forced associations that burden protected speech are impermissible.” Therefore, the majority explained, if a state decides to compel “individuals to mouth support for views they find objectionable,” like the State of Illinois did here by means of mandating fees to nonmembers, it would be in violation of the First Amendment, unless the State could prove it was “serving a compelling state interest that [could not] be achieved through means significantly less restrictive [than the means employed].”

When applying this “exacting scrutiny” standard to the facts of Abood and those present in Janus, the majority determined the State, in both instances, did not have a compelling enough interest to justify the policy of compulsory subsidization of commercial speech. In fact, the majority explained its rationale in “simple terms” when it proclaimed that “the First Amendment does not permit the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.” If one accepts the majority’s rule of general applicability above as reasonable, then, determining the constitutionality of Illinois’ policy in Janus is relatively easy: Even though the State believed that its statute requiring nonmembers to pay dues furthered the interests of those nonmembers, it nonetheless violated the Constitution because “the First Amendment was [never] originally understood to allow States to force public employees to subsidize a third party.”

Justice Kagan directly rebuked the conservative majority’s interpretation of previous First Amendment jurisprudence and appeared to take issue with the “exacting scrutiny” test it applied. In her view, the conservative majority should have used a standard resembling rational basis review, determining whether “[a] government entity could reasonably conclude that such a clause was needed” (emphasis added) before making a determination as to the constitutionality of the policy at issue. If the majority had applied the rational basis standard Justice Kagan advocated for rather than the “exacting scrutiny” standard, then, it would have likely upheld Abood and the Illinois policy at issue in Janus.

The majority’s decision to analyze Illinois’ policy with “exacting scrutiny” is at the core of what this blog post tries to address: whether it weaponized the First Amendment in order to get a desired policy result. Justice Kagan, joined by Ginsburg, Breyer, and Sotomayor, went so far as to accuse the majority of having “so little regard for the usual principles of stare decisis” when it decided to overturn longstanding precedentwithout having any “special justifications” to do so. It was dissent’s view that Abood was “deeply entrenched,” and thus the majority’s decision to overturn a decision that “struck a balance between public employers’ interests and public employees’ expression” was irresponsible.

Although one could understand and respect the dissent’s position, it seems the majority did not use an improper interpretation of the First Amendment as a means to get specific policy results. The majority cited to other longstanding precedent to demonstrate that Abood was in fact an outlier and not “at home in First Amendment doctrine,” as the dissent proclaimed. Furthermore, the majority’s decision to apply “exacting scrutiny” to the Illinois’ policy was also supported by previous First Amendment cases involving compelled commercial speech and was not suddenly sprung onto the Court in order to get a desired result. Although the decision to overturn Abood was understandably controversial because it overturned the longstanding policy of over twenty states, it appears the majority was on solid ground to do so and did not improperly wield the First Amendment as a sword.

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