Judicial Activism Redux

Yesterday's decision by the United States Supreme Court in Knox v. Service Employees International Union, Local 1000,567 U.S. __ (2012) is worrisome not so much for its resolution of the issue presented in the case, but for the Supreme Court yet again (as in Citizens United) reaching out to decide an issue not raised by the parties or the courts below, in their case, yet another ramification of the Roberts Court's valorization of the rule that payment of money should be the equivalent of pure speech under the First Amendment, and not activity with an expressive component (which can be regulated as long as the regulation is non-discriminatory, and not aimed at the expressive component). The giving of money achieved this talismanic status denied other expressive acts in Buckley v. Valeo (1976).

After deciding the issue raised by the parties--finding that under the First Amendment, when a union imposes a special assessment or dues increase levied to meet expenses that were not disclosed when the regular assessment was set, it must provide a fresh notice, and an adequate chance to opt out, which it clearly had not--the Court went on to find that the First Amendment also required that the union may not exact any funds from nonmembers without their affirmative consent. (Slip Op. at 22). In other words, the long-standing procedure of notice with an opportunity for nonmembers to "opt out"is unconstitutional; nonmembers must opt in.

As Justice Sotomayor wrote--while agreeing that the union failed to provide the necessary chance to opt out, under prior precedent--the objecting nonmembers "did not argue that the Constitution requires an opt-in system of fee collection in the context of special assessments of dues increases, or indeed, in any context. Not surprisingly, Respondents did not address such a prospect." (Sotomayor, J., concurring opinion at 3). Justice Sotomayor points out that this violates the Court's own rules, its precedents as to what issues are properly before the Court, and "the fundamental premise of our adversary system that appellate courts do not sit as self-directed boards of legal enquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them," a proposition which she quotes a 2011 opinion by Justice Alito, and cites two older opinions by Justice Scalia--the author of yesterday's majority opinion, and one of its 5 adherents. (Conc. at 3-4). She points out that the very evil warned against by those prior opinions--the unfairness of a party losing a case in a ground which it never had an opportunity to be heard on--is the result of this decision, which brushed aside a series of cases upholding "opt out" approaches in the compelled speech context. (Id; see also conc. at 1-2).

I remember when I was a law student, I assisted one of my mentors, Vivian Berger, in a death penalty case before the Rehnquist Court. A new case, on an issue never raised by the State, came out before oral argument, and became the basis for the Court's ruling, which reinstated the death penalty. Frustrating and unjust though that was--failure by the counsel of the defendant in such cases to raise an issue is virtually always deemed "procedural default" and insulates the sentence from even meritorious claims--at least the Court gave Vivian a chance to address the issue on which the case was decided in oral argument. That didn't happen here; as the transcript of oral argument shows, the only mention of "opt in" comes in a throwaway line from Justice Kennedy, disparaging an answer from union counsel as "so confusing that the Court should probably consider whether an opt-in requirement is--is preferable." (Tr. p. 47). Neither party, nor any member of the bench--including Justice Kennedy--takes the remark as a serious statement of policy; it's a one-liner, and everyone moves on, after counsel clarifies his answer which gave rise to Justice Kennedy's dissatisfaction. Such, in the Roberts Court, is how constitutional rules are born.

But there is worse to come. After setting out the "compelled speech" doctrine, the the majority (Alito, Roberts, Scalia, Thomas & Kennedy) writes:

When a State establishes an "agency shop" that exacts compulsory union fees as a condition of public employment, "[t]he dissenting employee is forced to support financially an organization with whose principles and demands he may disagree." Ellis, 466 U. S., at 455. Because a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences, see Tr. of Oral Arg. 48–49, the compulsory fees constitute a form of compelled speech and association that imposes a “significant impingement on First Amendment rights.” Ellis, supra, at 455. Our cases to date have tolerated this "impingement," and we do not revisit today whether the Court’s former cases have given adequate recognition to the critical First Amendment rights at stake.

Slip Op at 10 (emphasis added).

Well, that sets up the next constitutional challenge for ALEC quite nicely doesn't it?

ETA: