Supreme Court to consider free speech, labor unions and the role of past decisions


Randy Kozel

Randy Kozel

As the U.S. Supreme Court prepares to hear arguments Monday (Feb. 26) in Janus v. AFSCME — a landmark case for public-sector labor unions — University of Notre Dame Law Professor Randy Kozel says the case also raises wide-ranging questions about when laws should change and when they should stay the same.


The case involves requirements that compel government employees to pay agency fees to public-sector unions. The issue before the court is whether those requirements violate the First Amendment by impairing the employees’ freedom of speech. But the case could be equally important for what it reveals about the Supreme Court’s treatment of its own past decisions. 


“The court isn’t writing on a clean slate,” says Kozel, author of “Settled Versus Right: A Theory of Precedent.” “Decades ago, the court addressed this issue directly in a case called Abood, and it found that there was no constitutional violation. For today’s court, figuring out the best interpretation of the Constitution is really just the beginning. The court also needs to consider whether it is willing to overrule a decision that has been on its books for years.”


In “Settled Versus Right,” Kozel examines the question of when the court should break from the past and when it should stand by its prior decisions. He argues that while the court always has the power to correct its earlier mistakes, it should allow the law to remain settled unless there is a compelling reason for shifting gears.


“By keeping faith with the past, today’s justices promote the impersonality and continuity of the law,” he notes. “They allow the court to act as an enduring institution even as individual justices come and go. That doesn’t mean the court is stuck with all its mistakes. But it does mean today’s justices should demand a very good reason before breaking off in a new direction.”


Kozel, who also directs the Notre Dame Law School’s Program on Constitutional Structure, says the Janus case brings the tension between past and present into stark relief. “This is certainly an important First Amendment case, but its impact could be even broader if the justices offer insights into their thinking about the role of the court’s prior decisions.”

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