Briscoe Ivester & Bazel Newsletter for July 10, 2018

July 10, 2018 

Janus: A Time to Cast Away
“To everything there is a season . . . : a time to keep, and a time to cast away[.]” Ecclesiastes 3:1, 6 (KJV).
Very recently, the United States Supreme Court held that Illinois’ extraction of “agency fees” from nonconsenting public-sector employees violates the First Amendment. In doing so, the Court overruled Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), and therefore refused to apply the 41 year-old decision’s reasoning. Standing instead on the First Amendment, the Court saw the Illinois’ scheme as an unconstitutional abridgement of our freedom of speech. The dissenting Justices focused on the importance of letting prior decisions stand – or, because all lawyers speak Latin, stare decisis. In her dissent, Justice Kagan observed that “[r]arely if ever has the Court overruled a decision – let alone one of this import – with so little regard for the usual principles of stare decisis.” Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al., No. 16-1466 (June 27, 2018) (Kagan, J., dissenting, slip op. at 2.) Brown v. Board of Education’sresounding rejection of Plessy, however, comes easily to mind, as does Lawrence v. Texas. The Court in Janus confronted the institutional flaw the case presented and addressed it head-on, refusing to allow the reasoning of a 40-year-old case to bind it.
The Court’s decision in Janus is big news for public employers, and a likely boon for public labor attorneys, but why should the environmental and regulated community care? The Court’s decision in Janus perhaps points to the Court’s willingness, when “there are strong grounds for doing so[,]” to let a prior decision fall (or, in what is likely heretical Latin, lapsum decisis). Janus, No. 16-1466, slip op. at 34. One prior landmark decision arising from environmental and administrative law, Chevron v. NRDC, may soon come under renewed scrutiny by the Supreme Court.
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