Janus’s Two Faces
2019 Supreme Court Review, Forthcoming
34 Pages Posted: 20 May 2019 Last revised: 7 Dec 2019
Date Written: January 20, 2019
In ancient Roman religion and myth, “Janus” is the god of beginnings, transitions, and endings. He is often depicted as having two faces, one looking to the future and one to the past. The Supreme Court’s Janus v. AFSCME case of last term is fittingly named. Stunning in its disregard of principles of stare decisis, the Janus decision marks the end of the post-New Deal compromise with respect to public sector unions and the First Amendment. Looking to the future, Janus lays the groundwork for further attack on labor rights — as well as for a broader erosion of civil society and democracy at the expense of corporate power. In that way, Janus represents an unequivocal transition to what Justice Kagan termed a “weaponized” view of the First Amendment among the Court’s majority.
But Janus may also have another, more hopeful, forward-looking face. Ultimately, Janus’s undoing of the compromise that governed union fees for nearly fifty years provides the opportunity for a systematic rethinking of the relationship between labor and the Constitution and, more generally, of the meaning of the First Amendment. The dissenters on the Court gestured at this broader project, but their future-facing efforts were partial and unsatisfying. Instead, they looked backward to Abood v. Detroit Board of Education, a precedent the result of which was tolerable, but the reasoning of which was deeply flawed. Among its problems, Abood helped to lay the groundwork for the current doctrine on compelled speech and for Janus's protection of a right to exit from democratic institutions. Though stare decisis counseled in favor of maintaining Abood, its demise now opens up space to begin to flesh out what, in this setting, Justice Kagan’s promise of a “First Amendment meant for better things” might look like.
Keywords: Constitutional Law, First Amendment, Labor Law
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