Kagan on Stare Decisis

June 30th, 2014

In Harris v. Quinn, Justice Kagan offers an extended discussion on why Abood, even if wrong, should not be overturned.

First, the precedent is “entrenched in a way not many decisions are.”

And Abood is not just any precedent: It is entrenched in a way not many decisions are. Over nearly four decades, we have cited Abood favorably numerous times, and we have repeatedly affirmed and applied its core distinction between the costs of collective bargaining (which the government can demand its employees share) and those of  political activities (which it cannot).

Kagan also calls out the majority for casting doubt on Abood in Knox, without any briefing:

Not until two years ago, in Knox v. Service Employees, 567 U. S. ___ (2012), did the Court so much as whisper (there without the benefit of briefing or argument, see id., at ___ (SOTOMAYOR, J., concurring in judgment) (slip op., at 1–6)) that it had any misgivings about Abood. milimi

Second, it has “created enormous reliance interests”:

Perhaps still more important, Abood has created enor- mous reliance interests. More than 20 States have enacted statutes authorizing fair-share provisions, and on that basis public entities of all stripes have entered into multi- year contracts with unions containing such clauses. “Stare decisis has added force,” we have held, when overturning a precedent would require “States to reexamine [and amend] their statutes.” Hilton v. South Carolina Public Railways Comm’n, 502 U. S. 197, 202–203 (1991). And on top of that, “[c]onsiderations in favor of stare decisis are at their acme in cases involving property and contract rights.” Payne, 501 U. S., at 828. Here, governments and unions across the country have entered into thousands of con- tracts involving millions of employees in reliance on Abood. Reliance interests do not come any stronger.

Third, being wrong is not enough.

The majority’s criticisms of Abood do not remotely de- feat those powerful reasons for adhering to the decision. The special justifications needed to reverse an opinion must go beyond demonstrations (much less assertions) that it was wrong; that is the very point of stare decisis. And the majority’s critique extends no further. It is mostly just a catalog of errors Abood supposedly committed— reproaches that could have been leveled as easily 40 years ago as today.  If the kind of hand-wringing about blurry lines that the majority offers were enough to justify breaking with precedent, we might have to discard whole volumes of the U. S. Reports.

Justice Thomas would counter in constitutional decisions, stare decisis is inapplicable.

This strategy is consistent with Rick Hasen’s discussion of anticipatory overruling:

Justice Alito’s opinion for the Supreme Court in the Harris v. Quinn case gives all kinds of reasons for overturning the key pro-union case of Abood. Yet the Court majority does not pull the trigger.  Why not?  This seems to be a common move of the Roberts Court, as I explained in Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, 61 Emory Law Journal 779 (2012): “Anticipatory overruling occurs when the Court does not overrule precedent but suggests its intention to do so in a future case.” It is one of the tools the Roberts Court uses to appear moderate and minimalist.

In effect, Kagan’s opinion was a See-I-Told-You-So for the next go-round when the Court overules Abood.

And the majority says nothing to the contrary: It does not pretend to have the requisite justifications to overrule Abood. Readers of today’s decision will know that Abood does not rank on the majority’s top-ten list of favorite precedents—and that the majority could not restrain itself from saying (and saying and saying) so. Yet they will also know that the majority could not, even after receiving full-dress briefing and argument, come up with reasons any- where near sufficient to reverse the decision. Much has gone wrong in today’s ruling, but this has not: Save for an unfortunate hiving off of ostensibly “partial-public” em- ployees, ante, at 28, Abood remains the law.

And come on Elena. Could you not say “Abood abides.”