Bench Memos

Important Ruling in Knox v. SEIU—Part 2

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.

Most Popular



For your amusement, I hope, I’ve done a Jaywalking episode. It begins with a bit of the overture to Semiramide -- a Rossini opera I reviewed from the Met last week. Then I get into Russia and, after a while, China. The Marriott company fired an employee for “liking” a tweet by a Tibetan independence group. ... Read More

Campaigns for World Down Syndrome Day Go Viral

As World Down Syndrome Day approaches on Wednesday, several campaigns supporting those with the condition have taken over the Internet. Fifty mothers of children with the condition put together a viral video of them and their children singing along in the car. The video helped the children and their mothers ... Read More

Viva l’Italia?

Italy has just had elections, with very interesting results. I wanted to talk with Alberto Mingardi, which I have. He is one of the leading classical liberals in Italy -- the director general of the Bruno Leoni Institute, in Milan. (Mingardi himself is Milanese.) He is also an authority in arts and letters. In ... Read More

Putin and the Cult of Leadership

On Sunday, Russian dictator Vladimir Putin won an unsurprising reelection-campaign victory against Communist Party candidate Pavel Grudinin, by a margin of 76.7 percent to 11.8 percent. The results were unsurprising because Putin is a tyrant who murders or imprisons political rivals, and who isn’t afraid to use ... Read More

Trump and Brexit Derangement Syndrome

I am not one of those Brexiteers who believe that Brexit and Trumpism are essentially the same phenomenon in two different countries. To be sure, they both draw on some of the same political trends, notably a distrust of elites and an upsurge of popular anger over evident failures of public policy such as illegal ... Read More