Crossed Signals Have Saved Public Unions ... So Far

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By Kimberly Strawbridge Robinson

The U.S. Supreme Court has a chance this term to do what some of its members have been trying to do for years: overturn decades-old precedent allowing public unions to charge non-members some union dues.

Court watchers will get an indication whether that will happen Feb. 26 when the court hears arguments in Janus v. AFSCME Council 31, a First Amendment challenge to those non-member fees.

Several members of the court signaled a desire to overturn the 1977 precedent allowing such fees— Abood v. Detroit Bd. of Education—as far back as 2012.

Despite several opportunities for the court to strike it down, Abood hasn’t fallen yet.

That Abood is still good law is due to happenstance, Paul Smith, of Georgetown University Law Center, Washington, told Bloomberg Law. A previous challenge to Abood was hobbled when Justice Antonin Scalia’s unexpected death left the court in a 4-4 split on the issue. It is highly likely that Abood will finally fall this time around, Smith, who has argued before the Supreme Court that Abood should continue, said.

But if Abood dodges a bullet again, it wouldn’t be the first time that a justice’s call to overturn precedent has failed.

Indeed, justices may actually knowingly misrepresent the chances of success when sending such signals in order “to raise awareness, pressure another branch to act, or to generally agitate for policy change,” Tonja Jacobi, of Northwestern University Pritzker School of Law, Chicago, wrote in 2009.

Successful Signals

The justices are generally limited in their ability to effect changes in the legal world, Jacobi said.

Courts in general are “dependent on litigants to set their agendas, a considerable limitation on their agenda-setting power and their broader influence over the development of law,” she said.

But the justices sometimes attempt to “shape the Court’s agenda by providing signals to litigants about the sort of cases they would like to see,” Jacobi said.

“It is fairly common for the court to specifically highlight or reserve an issue (or criticize a case) in an opinion, which ends up directly leading to a new Supreme Court case a term or two later,” Michelle A. Reed, of Akin Gump Strauss Hauer & Feld LLP, Dallas, told Bloomberg Law.

The court has had some success with this signaling, such as in the landmark case Shelby County v. Holder.

Four years before the court decided Shelby County, it said in another case that the “coverage formula” determining which states had to comply with additional restrictions under the Voting Rights Act might be unconstitutionally out-of-date. Congress should do something about it, the court suggested.

When the issue came back up to the justices, Congress still hadn’t acted. The court struck down the civil rights provision in Shelby County, citing their previous dicta.

No Special Justification

But sometimes the signals don’t actually end up with the targeted precedent being scrapped.

One recent example is Halliburton Co. v. Erica P. John Fund, Inc. Back in 2013, four justices suggested that it was time to take another look at the “fraud-on-the-market theory” in securities litigation. Developed in a 1988 case, that theory made it easier for plaintiffs to sue companies for securities fraud.

Reconsideration of that theory “may be appropriate,” Alito said in a concurrence in the 2013 case.

But when the issue came back to the court the next year, the justices specifically declined to overrule the theory. The plaintiffs hadn’t shown a “special justification” for overruling court precedent, the court said. Oddly, the opinion was unanimous.

One reason justices who were previously critical of the fraud-on-the-market theory didn’t vote to overrule it may have been that the practical result of the case was the same either way, Reed said. The plaintiffs in Halliburton were ultimately “not afforded a conclusive presumption of fraud on the market and the case was remanded for further proceedings,” she explained.

But the fraud-on-the-market theory still stands.

Human Toll

More recently, calls for the court to overturn precedent on solitary confinement and the death penalty have gone unfulfilled.

In 2015, Justice Anthony M. Kennedy urged the court in a concurring opinion to reconsider the constitutionality of solitary confinement.

“The human toll wrought by extended terms of isolation long has been understood, and questioned, by writers and commentators,” Kennedy wrote. But the practice still continues, he added.

In the proper case, the court should consider “whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them,” Kennedy said.

Though there had already been a new wave of solitary confinement cases working their way through the judiciary, Kennedy’s signal bolstered that wave, Amy Fettig, of the American Civil Liberties Union, told Bloomberg Law.

When a justice raises the flag like this, attorneys have to respond, she said.

But the right case for reviewing solitary confinement apparently hasn’t made its way to the court, as the Supreme Court hasn’t even agreed to hear a case challenging the practice, let alone ruled it unconstitutional.

Arbitrarily Imposed

The same is true for the death penalty.

The same year that Kennedy raised questions as to the constitutionality of solitary confinement, Justice Stephen G. Breyer called into question the validity of the death penalty.

Arguing that the practice “highly likely” violates the Eighth Amendment because it is arbitrarily imposed, Breyer said at the very least, “the Court should call for full briefing on the basic question.”

But again, the cases have been filed, and the court has yet to accept any for review, Robert Dunham, of the Death Penalty Information Center, told Bloomberg Law.

More Time

Jacobi suggests that the reason the court hasn’t yet grappled with the constitutionality of solitary confinement and the death penalty is due to timing.

It can take up to six years for a justice’s signal to actually have an effect on the legal landscape, Jacobi said, citing her research on various Supreme Court signals.

“Following a judicial signal, it should take at least four to five years for a case to be tried, appealed, and ultimately brought to the Supreme Court,” Jacobi said.

Evenly Split

Abood and fair share fees for public unions didn’t have to wait so long, though.

As early as 2014, the justices had a case that put the precedent at risk. The court ultimately decided that case on narrower grounds.

Then came Friedrichs v. California Teachers Association in 2015, which many court watchers thought would finally bring down Abood.

The court seemed primed to strike the precedent after oral argument, but Scalia’s death left the court split 4-4.

Not Taking For Granted

This time around, opponents of public union fair share fees protected by Abood are optimistic.

The court is back up to full force with the confirmation of Justice Neil M. Gorsuch in April 2016. And the new justice has already shown signs of following in his predecessor’s footsteps.

Still, no “one is taking any anything for granted,” Patrick Semmens, of the National Right to Work Legal Defense Foundation, told Bloomberg Law. The National Right to Work Legal Defense Foundation represents the party challenging Abood in Janus.

A decision in Janus is expected by the end of June.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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