Janus's Two Faces
In ancient Roman religion and myth, Janus is the god of beginnings, transitions, and endings. He is often depicted as having two faces, one looking to the future and one to the past. The Supreme Court’s Janus v AFSCME case of last Term is fittingly named. Stunning in its disregard of principles of stare decisis, Janus overruled the forty-year-old precedent Abood v Detroit Board of Education. The Janus decision marks the end of the post–New Deal compromise with respect to public sector unions and the First Amendment. Looking to the future, Janus lays the groundwork for further attack on labor rights—as well as for a broader erosion of civil society and democracy at the expense of corporate power. In that way, Janus represents an unequivocal transition to what Justice Kagan termed a “weaponized” view of the First Amendment among the Court’s majority—indeed, far more so than her dissent elaborates. But Janus may also have another, more hopeful, forward-looking face. Ultimately, Janus’s undoing of the compromise that governed union fees for nearly fifty years provides the opportunity for a systematic rethinking of the relationship between labor and the Constitution and, more generally, of the meaning of the First Amendment. In Janus, the dissenters on the Court gestured at this broader project, but their future-facing efforts were partial and unsatisfying. Instead, they looked backward to Abood, a precedent the result of which was tolerable, but the reasoning of which was deeply flawed. Abood adopted a categorical approach to compelled subsidization of speech. It also fundamentally misconstrued the role of unions and their relationship to politics, the public’s interest in labor relations, and the nature of the “public square.” In so doing, Abood helped lay the groundwork for Janus’s demolition of union rights and for its protection of a right to exit from democratic institutions. Though stare decisis counseled in favor of maintaining Abood, its demise now opens up space to begin to flesh out what, in this setting, Justice Kagan’s promise of a “First Amendment meant for better things” might look like. This essay takes a first step toward that end.
"Janus's Two Faces,"
Supreme Court Review: Vol. 2018, Article 3.
Available at: https://chicagounbound.uchicago.edu/supremecourtrev/vol2018/iss1/3