In addition to Justice Alito’s majority opinion (see my Part 1 post), Justice Sotomayor, joined by Justice Ginsburg, concurred in the judgment (i.e., the reversal of the Ninth Circuit’s ruling). Sotomayor would have held only that the First Amendment “requires that the union provide non-members an opportunity to opt out” of the special assessment to fund political lobbying. She devotes most of her opinion to complaining about what she calls the “majority’s decision to address unnecessarily significant constitutional issues well outside the scope of the questions presented and briefing.” (That passage is a great illustration of how the imagined rule against splitting infinitives can generate awful and confusing prose: The reader first encountering the passage may well wonder how it is that the constitutional issues are “unnecessarily significant.”)
Sotomayor’s complaint strikes me as high on rhetoric but low on substance. For starters, under Alito’s analysis, it was necessary for him to address whether an opt-out from the special assessment would have resolved the First Amendment problem. As Alito puts it in his responsive footnote 9:
Justice Sotomayor would apparently have us proceed on the assumption that an opt-out regime is permitted. She would then have us decide what sort of opt-out procedures would be sufficient if such a regime were allowed at all. But that is a question that simply cannot be answered. It would be like asking what sort of procedural requirements would be required if the government set out to do something else that the First Amendment flatly prohibits—for example, requiring prepublication approval of newspapers.
Further, Sotomayor’s complaint that it’s “unfair and unwise” for Alito to have “cast serious doubt on longstanding precedent” without obtaining “adversarial presentation” is misplaced. It’s precisely by raising his concerns in this case that Alito ensures that litigants in future cases will brief and argue the questions he has raised but not decided.
As for Justice Breyer’s dissent (joined by Justice Kagan): His seeming indifference to the First Amendment rights of nonmembers of unions illustrates the anomalous treatment that Alito finds puzzling.