Bench Memos

Not Inexorable: Why Stare Decisis Doesn’t Require Adherence to Abood

My previous posts regarding Friedrichs v. California Teachers Association touched on two practical issues facing the Supreme Court when it reconsiders Abood v. Detroit Board of Education this term, namely the free-rider effect and whether unions can survive in a post-Abood America.  But, in Friedrichs, the Court will also grapple with the important principle of stare decisis and the Court’s understandable reluctance to overrule its earlier decisions.

Some liberal commentators already have suggested that overturning Abood would be a clear indication that the Supreme Court is acting politically.  If the Court were to abrogate core First Amendment rights to adhere instead to a decision that was dubious the day it was issued and has subsequently demonstrated itself to be inconsistent with the broad swath of First Amendment law—all to avoid harsh words in the form of the bare accusation of partisanship—that would be a politicization of the Court.

As a preliminary matter, stare decisis—the judiciary’s pragmatic policy of following its own precedent—is “the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”  Payne v. Tennessee, 501 U.S. 808, 827 (1991). Thus, courts typically strive to remain faithful to their prior decisions and will not stray from precedent without a “special justification.”  Arizona v. Rumsey, 467 U.S. 203, 212 (1984).

But stare decisis, as the Court has recognized on numerous occasions, is a “principle of policy” and not “a mechanical formula of adherence to the latest decision,” Helvering v. Hallock, 309 U.S. 106, 119 (1940).  Nor is it an “inexorable command,” as Justice Kennedy noted in Lawrence v. Texas, 539 U.S. 558, 577 (2003), overruling Bowers v. Hardwick, 478 U.S. 186 (1986).  Rather, as Chief Justice Roberts once put it: “When considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right.”  Stare decisis, the Chief continued, “is not an end in itself.”  Citizens United v. Federal Election Commission, No. 08-205, slip op. at 6,7, 558 U.S. ___ (2010) (Roberts, J., concurring).

The Court must confront stare decisis in Friedrichs because the petitioners have asked point-blank “[w]hether Abood v. Detroit Bd. Of Education, should be overruled and public-sector ‘agency shop’ arrangements invalidated under the First Amendment,” and a more limited answer that avoids the constitutional questions at hand seems to be unavailable. 

Indeed, the Roberts Court, in keeping to its minimalist ways, has passed on the question not once, but twice, because it could resolve the prior cases before it without reaching the constitutional question.  But in Friedrichs, the constitutional questions appear to be unavoidable. As the Chief Justice has noted before, “[t]here is a difference between judicial restraint and judicial abdication.  When constitutional questions are ‘indispensably necessary’ to resolving the case at hand, ‘the court must meet and decide them.’”  Citizens United, slip op. at 4, 558 U.S. ___ (Roberts, J., concurring).

Friedrichs concerns fundamental First Amendment rights of free speech and association, and asks the Court to uphold and protect those rights as against Abood, a case that was criticized from its inception, and has grown to be more of an aberration over time.  While stare decisis sometimes means that the Court will adhere to error in the interest of legal predictability, the Court has nonetheless recognized that the principle of stare decisis “is at its weakest when [the Court] interpret[s] the Constitution.”  Agostini v. Felton, 521 U.S. 203, 235 (1997).  This is, of course, as it should be.

Placing the pragmatic rule of stare decisis within the separation of powers framework, if the Supreme Court makes an error interpreting a statute and adheres to that error in subsequent cases not because the rule is correct, but based upon a pragmatic interest in legal stability, the other branches may correct the error by passing a new law.  Doing so is not necessarily an easy task, and it raises interesting questions.  Because the Congress that passed the law in question is likely not the same Congress that would be forced to fix the Court’s error, the subsequent Congress’s interpretation of the law could be different, and therefore it may not have the same incentive to vindicate the original public meaning.  Even so, a correction of the Court’s error is reasonably feasible.

However, if the Supreme Court errors in interpreting the Constitution and adheres to that error in the interest of legal stability, then error correction is much more costly.  Either the other branches must assert their independent authority to interpret the Constitution (something that neither Congress nor the President seems willing to do), or the nation must go through the cumbersome process of constitutional amendment—a feat that has been achieved only 27 times in our nation’s history.

Friedrichs presents the additional factor in that the case raises the question of constitutional rights.  I am not aware of a single case in which the Supreme Court has relied upon stare decisis to adhere to a weak or erroneous precedent where the effect would be to deny a core constitutional right.

Thus, Friedrichs presents the Court with what the Chief Justice has called that “unusual circumstance when fidelity to any particular precedent does more to damage [the rule of law] than to advance it. . . .”  In such cases, he wrote, “we must be more willing to depart from that precedent.”  Citizens United, slip op. at 7, 558 U.S. ___ (2010) (Roberts, J., concurring). 

When the Court addressed the issue of stare decisis in the context of the First Amendment in the case of Citizens United, which overturned Austin v. Michigan Chamber of Commerce, several factors weighed in favor of that “departure.”  Similar factors weigh against keeping the outmoded Abood.

First, just as Austin was an “aberration” that was inconsistent with the Court’s First Amendment jurisprudence, the Court has already criticized Abood for being “something of an anomaly.”  The Court explained in Knox v. Service Employees International Union that Abood’s concern with “preventing nonmembers from free-riding on the union’s efforts [was] generally insufficient to overcome First Amendment objections.”  Knox, No. 10-1121, slip op. at 10-11, 567 U.S. ___ (2012).  Despite this general insufficiency, Abood withheld First Amendment protection and thus remains an aberrant decision that merits reconsideration.

Second, whereas the “validity of Austin’s rationale . . . has proved to be the consistent subject of dispute among Members of the Court,” Citizens United, slip op. at 9, 558 U.S. ___ (Roberts, J., concurring), so too has a majority of the Court harshly criticized the flawed rationale and analysis in Abood on several grounds—first in Knox, and again in Harris v. Quinn.  As the majority in Harris explained: Abood seriously misunderstood earlier First Amendment cases; failed to distinguish between the core union speech subsidized by dissenting public-sector employees and the core union-speech funded by private-sector employees, insofar as in the public sector issues such as wages, pensions, and benefits are significant political issues; failed to understand that in the public sector context, both collective bargaining and political lobbying are aimed at the government; and relied heavily on the unsupported assumption that exclusive representation in the public sector requires an agency shop.

Those failings lie at the very foundation of Abood’s rickety framework.  In Harris, however, the Court was asked to overlook these failings and extend Abood to workers who were not “full-fledged public employees.”  The Court refused.  But by distinguishing between the public-sector employees in Abood and the employees in Harris, the Harris Court showed judicial restraint in questioning Abood’s rationale without overruling it—and Abood survived.  The Friedrichs case offers no room for such a distinction.

Third, simply because cases like Austin and Abood have proven controversial is not enough to justify overturning them—but it does “undermine the precedent’s ability to contribute to the stable and orderly development of the law.”  Citizens United, slip op. at 9, 558 U.S. ___ (Roberts, J., concurring).  Friedrichs petitioners contend that this is especially true inasmuch as “preserving Abood renders [the] Court’s general First Amendment jurisprudence not only inconsistent, but topsy-turvy.  If Abood survives,” they argue, “[the] Court’s decisions will provide greater protection against the compelled subsidization of ‘mundane commercial . . . speech,’ than the compelled subsidization of core political speech.”  (Friedrichs v. California Teachers Assoc., Brief for the Petitioners, 54.)  Although mere controversy does not justify overruling a prior case, the fact that the challenged “precedent may be a positive detriment to coherence and consistency in the law” certainly does.  Patterson v. McClean Credit Union, 491 U.S. 164, 173 (1989).

Finally, the howls of “politicization” by the Left if the Roberts Court fails to adhere to stare decisis are disingenuous—and, some might say, political—at best.  The Left cares little for adherence to precedent or tradition, unless it is their precedent.  If the precedent is, for example, one declaring the death penalty constitutional, the vintage of the decision (older than Abood) and its foundation in the text of the Constitution are of little consequence.  They full-throatedly advocate for reversal, without so much as a hint of reserve based on, what was the term—I forget.  History marches forward.  But if the Court commits an error in the Left’s favor—one unsupported by the Constitution, and one which deprives millions of Americans of their First Amendment rights, as is the case in Abood—well, then the Supreme Court would be acting politically if it were to reverse the sacrosanct opinion.

The Court is right to prefer fidelity to its precedent over the alternative.  But stare decisis alone should not and cannot trump the constitutional rights and freedoms of speech and association.  The Court has a long and respectable history of refusing to allow the tail to wag the dog in such cases.  Rebecca Friedrichs’ case is on the right side of that history, and the time has come for the Court to forge a more consistent and cohesive doctrine of First Amendment freedoms without the muddled inconsistencies perpetuated by Abood.



Robert Alt is the president and chief executive officer of The Buckeye Institute.


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