Supreme Court Review

Article Title

The Supreme Court’s Challenge to Civil Society


For organized labor, the significance of Janus v American Federation of State, County and Municipal Employees, decided at the end of the Supreme Court’s 2017 Term, was obvious. Based on the Roberts Court’s new interpretation of the First Amendment’s guarantees of free speech and association, Janus overturned Abood v Detroit Board of Education. Abood, decided in 1977 by a vote of 9 to 0, rejected a First Amendment challenge to the system of “agency” or “fair-share” fees that public employees could be required to pay to the union even if they declined to join the union or objected to the union’s very existence. By the time the Janus court declared by a vote of 5 to 4 that the agency fee system violated the objecting employees’ First Amendment rights, Abood had come to look like a relic from a different era—as indeed it was, in more ways than one. In tracing the Supreme Court’s trajectory from Abood to Janus, I am not principally concerned with the Janus decision’s impact on organized labor, although that is likely to be substantial, or with First Amendment doctrine as such. Rather, I will argue that Janus exemplifies the Supreme Court’s retreat from the notion of the collective good within the framework of civil society. My goal in this article is to situate Janus within this wider landscape, and to show how in fostering a constitutional culture that entitles individuals to opt out of duties they find disagreeable, the court is eroding the expectation of collective obligation that civil society requires if it is to thrive.

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