With the retirement of Anthony Kennedy, the two Latin words most everyone will be speaking/debating the meaning of/bemoaning are stare and decisis. A few weeks ago I started putting together a syllabus, as it appears I will be again teaching a first-year legal research and writing course. While it’s now relatively easy to teach how to find the latest and best law in this age of electronic search engines and instant citators, a skill that’s harder to impart is predicting where the law will go. Stare decisis is a big issue.
Looking to update my course a bit, I abandoned the two cases I usually start the semester with, a pair of New Jersey cases tracking the development of liability theories dealing with the residual tort liability of sellers in real property conveyances, and decided to use Lawrence v. Texas instead. Lawrence was the 2003 decision which reversed Bowers v. Hardwick, dealing with Texas’ sodomy law. Lawrence is a good case to teach because it’s relatively short, well–written, and illustrates a pretty dramatic reversal, 180 degrees in 17 years, of what most folks thought was settled law. It also contains an interesting discussion of laws dealing with private conduct dating back to English common law centuries ago.
I had just finished my PowerPoint on Lawrence when SCOTUS decided Janus v. AFSCME on June 27. Janus was a 5-4 decision finding that Illinois’ law requiring compulsory payment of fees by nonmembers of public employee unions to be unconstitutional on First Amendment grounds. It’s a good expiation of the law about when public employees can speak on matters of general interest as opposed to doing so in their official capacities. That’s law I occasionally looked at when I was a public official, shooting my mouth off to this and other publications on matters dealing with law, lawyers and the regulation of the profession. It also contains a robust discussion of stare decisis, as it reversed a 41-year-old case called Abood.
OK, that would give me more fuel for the fire I thought, but before I could update my notes, hours later Kennedy announced his retirement. Goodness. Things are going to get very interesting.
I was already primed for the Janus/Kennedy storm because the first sentences of Scalia’s dissent in Lawrence read as follows:
“Liberty finds no refuge in a jurisprudence of doubt.” (Citing to Planned Parenthood v. Casey.) That was the Court’s sententious response, barely more than a decade ago, to those seeking to overrule Roe v. Wade. The Court’s response today, to those who have engaged in a 17-year crusade to overrule Bowers v. Hardwick is very different. The need for stability and certainty presents no barrier.
Whatever you might have thought about him, Scalia was pretty good at highlighting anything he perceived as hypocrisy or inconsistency on the part of his ideological foes. His argument was that stare decisis either meant something or it didn’t, and should not be a doctrine used or abandoned anytime a majority felt it had enough support to reaffirm or change settled law. (Thomas also has a shorter dissent, calling the Texas law “silly,” but arguing that SCOTUS had better things to do than deal with such trivia.)
In case you don’t think Scalia’s dissent was prescient, Kagan, in her dissent in Janus, pointed out that the decision appeared to be the result of the majority’s “6-year crusade” to ban agency fees. I bet you a dollar to a peanut that the use of that word was not accidental.
So now we know what the fall has in store for us. Some candidate for Kennedy’s seat is going to demur to any and all questions by the assembled Judiciary Committee senators about whether Roe is settled law. No end of ink will be spilled about reproductive rights, a woman’s right to make her own decisions about her own body, and Trump’s likely legacy of changing SCOTUS’s direction for at least a generation.
I haven’t taught this first-year course in about a decade. I’ve been warned that today’s students might strike me as apathetic and difficult to engage. If true, that’s too bad, because I’ve been sensing that the mood of the country is starting to harken back to the ’60s, with demonstrations, civil disobedience and abundant marijuana. They were times of great unrest and times of great change, some of it very good. We even had a president leave office, midterm, to avoid impeachment.
I have to finish this and get it off to my editor now. I’m heading to a fundraiser for a young man who may be New Hampshire’s first gay member of Congress. I sense he’s part of a wave of young folks determined to blow up the status quo, for the good. My computer is playing Paul Robeson singing “The Ballad of Joe Hill,” “don’t mourn, organize.” I’ll be humming that all afternoon.
Former Connecticut Chief Disciplinary Counsel Mark Dubois is with Geraghty & Bonnano in New London.