Midway through Monday’s oral argument in Janus v. American Federation of State, County, and Municipal Employees, Justice Sonia Sotomayor asked U.S. Solicitor General Noel Francisco, “[H]ow much is there unionization in the general corporate sector … or private sector?”
“I don’t have that number,” Francisco replied.
Francisco cited very few facts, in fact, even though he was asking the Court to reverse a 40-year-old precedent that allows public-employee unions to collect “agency fees” for the cost of representing non-member employees in collective bargaining. Along with William Messenger, staff attorney for the National Right to Work Legal Defense Foundation, he assured the justices that reversing that case—called Abood v. Detroit Board of Education—would cause no real problems for the states, their employees, or the unions those employees chose to represent them.
The record didn’t support that assurance, simply because … well, there is no record in this case. There is simply the claim, a longtime staple of conservative legal thinking, that Abood was wrong; there is the unspoken corollary that conservatives now at last have five votes and can get rid of it.
In legal terms, that’s a curious assertion. Courts claim to follow a principle called stare decisis, meaning that cases, once decided, are not to be overturned simply because new judges come on the Court, or new parties win elections, or newly tenured law professors think they were wrong; the radical step of voiding precedent is saved for cases that have been proven unworkable or unjust in the years since they were decided.