When the Supreme Court doesn’t care about facts
Midway through Monday’s oral argument in Janus v. American Federation of State, County, and Municipal Employees, Justice Sonia Sotomayor asked U.S. Solicitor General Noel Francisco, “[H]ow much is there unionization in the general corporate sector … or private sector?”
“I don’t have that number,” Francisco replied.
Francisco cited very few facts, in fact, even though he was asking the Court to reverse a 40-year-old precedent that allows public-employee unions to collect “agency fees” for the cost of representing non-member employees in collective bargaining. Along with William Messenger, staff attorney for the National Right to Work Legal Defense Foundation, he assured the justices that reversing that case—called Abood v. Detroit Board of Education—would cause no real problems for the states, their employees, or the unions those employees chose to represent them.
The record didn’t support that assurance, simply because … well, there is no record in this case. There is simply the claim, a longtime staple of conservative legal thinking, that Abood was wrong; there is the unspoken corollary that conservatives now at last have five votes and can get rid of it.
In legal terms, that’s a curious assertion. Courts claim to follow a principle called stare decisis, meaning that cases, once decided, are not to be overturned simply because new judges come on the Court, or new parties win elections, or newly tenured law professors think they were wrong; the radical step of voiding precedent is saved for cases that have been proven unworkable or unjust in the years since they were decided.
Brown v. Board of Education in 1954 reversed not one but three venerable Supreme Court decisions that spanned more than a decade—Plessy v. Ferguson (1896), Cumming v. Richmond County Board of Education (1898), andBerea College v. Kentucky (1908). Those cases had held that state laws requiring racial segregation were constitutional—as long as facilities for the races were “separate, but equal.”
The NAACP Legal Defense and Education Fund, founded in 1940, did not rush into court arguing they had always been wrong; instead, the LDF brought case after case demonstrating that facilities made “separate” by race could never, in any meaningful sense, be “equal.” By 1954, the facts the LDF cited convinced the justices that the segregation trilogy rule simply did not work; and thus, the Court unanimously overturned it.
Ordinarily, a case testing important constitutional questions would arise out of a trial of some sort, in which the two parties would present factual evidence—at least documents and affidavits, if not expert witness testimony—supporting their side. In Brown, for example, the NAACP plaintiffs called psychologists Kenneth and Mamie Clark to testify that their work with black children showed negative effects of segregation on their self-esteem (as measured, for example, by their choice of white dolls over dolls with African American features). The Clarks were cross-examined before a judge; the states defending segregation presented their own expert psychologist, Columbia University Professor Henry Garrett, to defend segregation. Brown’s record was rich in evidence about the nature of segregated schools and their effects on students. Confronting that evidence, the Court had a basis to conclude that the previous cases should be overturned.
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