A Question of Legitimacy Looms for the Supreme Court

Any day now, perhaps as soon as Thursday, the Supreme Court will issue a decision that more than any other case this term will reveal to us the heart and soul of the Roberts Court at the end of Chief Justice John G. Roberts Jr.’s 14th year.

The case is Janus v. American Federation of State, County and Municipal Employees. It presents the question of whether the court will adhere to its 41-year-old precedent under which states can require public employees who object to joining a union to nonetheless pay their fair share of the union’s costs of the collective bargaining from which all employees benefit.

I’ve just made a bold claim for a case that’s not at the top of most people’s Supreme Court watch lists. What about Trump v. Hawaii, the case on the validity of the president’s Muslim travel ban, also due for a decision in the coming days? That case is extremely important, of course, but here’s the difference: There was no way the court was going to avoid a case presenting fundamental questions of presidential authority. But Janus is a case, it’s fair to say, of the Supreme Court’s own creation.

It arrived on the court’s docket a year ago at the court’s implicit invitation after three previous efforts by conservative justices to find a vehicle for overturning the old precedent had foundered. The leader of this effort, Justice Samuel A. Alito Jr., almost struck gold in January 2016 when the chief justice assigned him to write the opinion for a 5-to-4 majority in Friedrichs v. California Teachers Association. But then Justice Antonin Scalia died, leaving the court divided 4 to 4 and Justice Alito a vote short of his goal. Two months later, the Janus petition arrived.

There’s no doubt that in the 41 years since the court decided the Abood case the First Amendment has morphed into a deregulatory tool that the justices of that earlier era would scarcely recognize. That trend has accelerated under the Roberts court. But my goal here is not to dive into First Amendment doctrine. Forgive my cynicism, but the attack on public employee unions has little to do with the Constitution and a whole lot to do with politics.

It’s no secret that public employee unions skew Democratic. Teachers unions, in particular, give Democrats a lot of money, some $60 million alone during the 2016 election. It’s also no secret that as private sector unions shrink into near invisibility — 6.5 percent of the private sector work force was unionized in 2017 — unions still cover 34.4 percent of public sector workers, and public sector unions represent the future of organized labor. Take them down, and you remove a money engine for the Democrats and cast a big shadow over the future of organized labor itself.

The point of the Abood decision, of course, is that workers who object to the union’s political activities don’t have to pay for them. But they do have to pay the fair-share or agency fee that covers the union’s costs for collective bargaining and representing individual employees; under federal labor law, unions have to represent everyone, members or not.

States are free to ban the agency-fee system or, for that matter, public employee unions entirely. But with both houses of the Illinois Legislature controlled by Democrats, Governor Rauner could not achieve his goals legislatively. It turned out that he couldn’t achieve them judicially, either; the Federal District Court threw him out for lack of standing; whoever the agency fee might be injuring, it wasn’t the governor.

But the court then permitted three state workers, including Mark Janus, to rescue the lawsuit by intervening as plaintiffs. That was an unusual move by the court, since logically there was at that point no lawsuit remaining in which the three could intervene. On appeal, the United States Court of Appeals for the Seventh Circuit questioned the intervention, but allowed it and ruled against the new plaintiffs on the merits.

Lisa Madigan, the state’s Democratic attorney general, joined with the union last summer in opposing the plaintiffs’ Supreme Court appeal. The union argued vigorously that the case was jurisdictionally flawed from the outset and that the Supreme Court therefore lacked the authority to hear it. Ordinarily, the justices shy away from a case that looks jurisdictionally sketchy. But this train had already left the station, and there was no stopping it this time.

Thousands of teachers in Arizona rallied outside the Capitol on the second day of their walkout.CreditMatt York/Associated Press

It’s now been six years since Justice Alito, in a case called Knox v. Service Employees International Union, first revealed his eagerness to find the right vehicle for overturning Abood and effectively issued an open invitation to anti-union forces to bring him the right case. It seemed an aggressive move then. It still does but, watching the world outside the Supreme Court, I have a different thought. Is it just possible that the court’s timing is off?

Here’s what I mean. Remarkably, in the past few months, the public seems for the first time in years to be appreciating its public employees, especially teachers. Teacher walkouts in red states like West Virginia and Oklahoma received widespread attention and resulted in higher salaries. The winner of a competitive Republican primary for governor in Idaho pledged support for higher education spending and was endorsed by the teachers’ union.

So is it possible that just as the Supreme Court is about to take a hammer to the teachers’ unions, teachers are back in favor? A Supreme Court decision, needless to say, is not a popularity contest, nor should it be. At the same time, the court necessarily skates on thin ice when it comes as close as it has here to serving an agenda that is not the public’s but its own — and by a 5-to-4 vote.

In 2005, Richard H. Fallon Jr., a constitutional scholar at Harvard Law School, published an article in The Harvard Law Review titled “Legitimacy and the Constitution.” He drew a distinction between what he called “legal legitimacy” and “sociological legitimacy.” His argument was extensive and subtle, and I can’t do it justice by boiling it down to a few sentences.

As I understand the argument, it is that legal legitimacy — a governmental act or judicial decision that can be justified on strictly formal terms — is necessary but not sufficient. Something more, sociological legitimacy, is needed. As Professor Fallon defines it, “When legitimacy is measured in sociological terms, a constitutional regime, governmental institution or official decision possesses legitimacy in a strong sense insofar as the relevant public regards it as justified, appropriate or otherwise deserving of support.”

Do those words speak to the Roberts court? As another term draws to a close, we should hope so, for the justices’ sake and for our own.