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Abood abides

Monday’s decision in Harris v. Quinn didn’t go nearly as far as many people hoped/feared. The Supreme Court strongly criticized its prior precedent, Abood, that allows the government to take money from non-union workers to support the activities of public-sector labor unions. But it did not overrule that precedent, despite previous warning signs in its decision in Knox v. SEIU.

On Monday I started speculating that this meant that the court was bluffing. Here is Ben Sachs of On Labor with a similar thought:

The dicta in Harris about Abood is serious, and it shows that some number of Justices would like to overturn Abood. But the holding in today’s decision shows that that number probably does not equal 5. Most of the Harris dicta is just a repeat of what was already said Knox, and Harris was a completely viable vehicle for overruling Abood. That the Court did not pursue this course may mean the votes aren’t there.

But here is Jack Goldsmith, also at On Labor, disagreeing:

Yes, the Court did not overrule Abood in Harris, but the question of whether five Justices want to overrule Abood is different from the question of when and under what circumstances they want to do so. The five Justices in the majority were unwilling to pull the trigger now, but the anti-Abood dicta in Harris, following the anti-Abood dicta in Knox, is a clearly ominous sign. In two cases over of two years, five Justices without qualification or separate concurrence have joined in extensive critiques of Abood. Why would they do that when those critiques are unnecessary to the outcome of the case? Why no narrower concurrences if one or a few of the Justices are disinclined to overrule Abood? (Compare Justice Kennedy’s typically limiting concurrence in Hobby Lobby.) Why do these critiques of Abood – including the arguments that it was wrong as originally decided, that it is inconsistent with other doctrines and precedent, and that it has proven unworkable in practice – track the criteria for overruling constitutional precedents? Why is Justice Kagan so keen – despite the holding of Harris – to argue that overruling Abood would violate the Court’s stare decisis principles? (More on this below.) The answer to all of these questions, I believe, is that overruling Abood remains a distinctive goal of the five Justices in the majority in Harris.

Jack goes on to suggest that perhaps an original draft of the majority opinion did overrule Abood, and was then revised. It’s hard to know, but that seems plausible from the paper record. But if that is true, is there a certain number of close calls after which the court’s criticism starts to look like an empty threat?

(I still haven’t fully made up my mind about this, but as I discussed here, I am in tentative agreement with Eugene’s criticism of the Abood doctrine here. If the court wants to abandon precedent and rethink this area from first principles, it is not clear to me that there is a First Amendment problem when the government takes your money to give it to organizations you disagree with. If Abood is to be abandoned, that doctrine needs a first-principles defense, and I have not yet seen a persuasive one.)

UPDATE: I forgot to give credit to Josh Blackman, and Kurt Lash, both of whom thought up the title of this post long before I did.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).

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