C. Public Sector Unionism

An important piece of context behind the Abood to Janus jurisprudential story is that the cases in question revolve around public sector employers instead of private corporations. Privatesector unionization movements began to gain governmental legitimacy and First Amendment protections starting as early as the National Labor Relations Act of 1935 (NLRA), also known as the Wagner Act cxxiv This landmark piece of legislation created the arbitration body National Labor Relations Board (NLRB), ensures the free selection of an exclusive bargaining representative,cxxv and delineates unfair labor practices.cxxvi The foundational point of contention for public sector unions has always been the idea of exclusivity, in which “the labor organization is the exclusive representative of the employees in the unit it represents and is entitled to act for and negotiate collective bargaining agreements covering all employees in the unit.”cxxvii

Alongside exclusive representation, the auxiliary principle of the right to fair representation mandates that unions “[have] the duty to represent all employees—whether members of the union or not—fairly, in good faith, and without discrimination.”cxxviii

As collective bargaining between unions and private corporations developed in the 1960s, it served as an established model for public sector unions to adhere to. While public-sector unionism tried to follow in the footsteps of its private-sector siblings, it was inherently subject to a heightened level of public scrutiny. For decades, collective action within public workforces was seen as near impossible.cxxix This fraught history of public sector unions and their delicate status within recent jurisprudence has greatly informed the acceptable amount of latitude that right-to-work groups and conservative Supreme Court judges have to limit the possibility of collective bargaining in the public sphere of work.

A. Abood: A Well-Reasoned Perspective on Fair Share Fees

A clear analysis of the controlling precedent created by the Burger Court regarding fair share fees in Abood v. Detroit Board of Education (1977) is necessary to understand how devastating and poorly justified Alito’s rulings were in Janus and its preceding cases. The case revolved around the constitutionality of a Michigan statute that allowed unions in the state to function under an agency shop arrangement. The Abood appellants, the first in the nation to launch a constitutional complaint against the validity of fair share fees in public sector unions, consisted of a group of Detroit teachers headed by D. Louis Abood. They filed in Michigan state court against the Detroit Board of Education and against the local teachers’ union they refused to join.cxxx

1. The Grievances

The teachers based their challenge around the idea that their fair share fees were being used in violation of their First Amendment rights to “not speak” and the protections they were guaranteed against compelled speech. Specifically, they argued that “they [had] been prohibited, not from actively associating, but rather from refusing to associate” with the political beliefs of the union because their service fees helped the union express political views unrelated to its purpose as a collective bargaining representative.cxxxi The appellants also revolved their challenge around the idea that their public sector government employment “directly implicated constitutional guarantees” in a way that private employment does not.cxxxii The latter argument was easily debunked by the Burger Court, which held that “the differences between public- and private-sector collective bargaining simply do not translate into differences in First Amendment rights.”cxxxiii Regarding the First Amendment’s freedom of association and compelled speech, the

Court ruled that the “governmental interests advanced by the agency shop provision outweighed the plaintiffs' First Amendment objections.”cxxxiv In a well-justified defense of a union’s exclusive right to bargain effectively, the Burger Court and Justice Potter Stewart set the tone for future discussions around First Amendment rights and how they apply in the context of public sector unionization.

2. The Compelling Interest of Labor Peace

As the first Supreme Court case on the topic of public sector fair share fees, Abood established a base of fundamental precedent regarding how employees’ First Amendment protections comport with the rights of unions. The most far-reaching of these general foundational principles is the idea of labor peace, which serves as an important context behind the anti-fair share fee arguments Justice Alito used in the lead-up to his complete overturn of Abood. Within the specific environment of teachers’ unions, Justice Potter Stewart, who wrote the opinion of the court, explained the governmental interest in labor peace by stating that exclusive representation and the agency shop are necessary to prevent “confusion and conflict” between rivaling unions.cxxxv The labor peace concept required a full buy-in into the union’s collective bargaining efforts by union members and non-members alike, in order to respect exclusivity. Although those principles were widely accepted as compelling for decades, this paper will illustrate how the means of achieving those state interests were devastated by recent Supreme Court rulings.

3. The Impact of Abood’s Holding

Apart from the compelling interest and labor peace discussions, the Abood court took meaningful action to create a path forward for public sector unionization that maintained the use of fair share fees. Although Abood’s chosen structure of union reimbursement would swiftly be dismantled by Justice Alito, it once represented the basis on which thousands of government employment contracts were constructed. This aspect of Abood’s precedent signifies another important concept—reliance interests—and begins this paper’s discussion about the key aspects of stare decisis that Justice Alito dismissed during his years-long plan of overruling Abood

The chosen balancing test method that the Abood court used to resolve fair share fees’ compelled speech problems depended on the clear earmarking of non-members’ dues exclusively for collective bargaining purposes. This was seen as an adequate solution since negotiating and administering the collective-bargaining agreement and adjusting grievances and disputes fell within "the reasons accepted by Congress [for authorizing] union-shop agreements.”cxxxvi To begin, the court contextualized its decision by clearly holding that a union may use dues for political expression.cxxxvii However, they are only constitutionally allowed to use dues “paid by employees who do not object to advancing those ideas and who are not coerced into doing so against their will by the threat of loss of governmental employment.”cxxxviii The Abood court took care to objectively clarify their reasoning and acknowledge the concerns of the appellants in an attempt to strengthen their ruling against the test of time and inevitable conservative pushback.

Abood’s holding was sensible enough that “despite the hostility the Abood decision has received over the years, the case was never overturned until Janus, 41 years later.”cxxxix This suggests that even though Abood faced conservative disapproval throughout the years, it took a uniquely ideological conservative court and the right political climate to execute Alito’s partisan takedown of fair share fees.

The crux behind Abood’s constitutionality was Justice Stewart’s statement that “using funds that nonconsenting members or nonmembers paid for ideological activities not germane to collective bargaining is a violation of those employees' First Amendment rights.” cxl Expanding on the specific First Amendment protection, he states that “the government may not compel an individual to affirm certain ideological or political beliefs as a ‘condition of retaining public employment.’”cxli Essentially, the court delineated the following standard for public sector fair share fees: if an expenditure of the union was germane to collective bargaining purposes, it was chargeable to a non-union member. The court also purposefully left room for this principle to evolve through clarification by future Supreme Court cases. This is a logical move that reflects how valid precedent should become entrenched over time as the “decision’s age and subsequent decisions reaffirming it [increases] its precedential weight.”cxlii In the Abood/Janus paradigm, these subsequent decisions, such as Chicago Teachers Union v. Hudson (1986) and Lehnert v. Ferris Faculty Ass'n (1991), further refined the specific expenses that qualified as germane and chargeable to non-union members. To defend his reversal of stare decisis, Justice Alito had to delegitimize all the specific precedential holdings set by Abood and its complementary cases.

Post-Abood Developments: Reliance Interests and the State of Stare Decisis

1. An Introduction to Reliance

After Abood’s landmark ruling came into effect, public-sector employers across the country began to bargain with unions under a new agency-shop regime. Over time, countless contracts would be signed under the assumption that the Abood ruling would be settled law under the Supreme Court’s doctrine of stare decisis. This phenomenon is well-documented as a core basis behind the entire idea of ‘binding law’ in American jurisprudence. In Payne v. Tennessee (1991), Justice William Rehnquist outlined the foundations of stare decisis as being “the evenhanded, predictable, and consistent development of legal principles [which] fosters reliance on judicial decisions and contributes to the actual and perceived integrity of the judicial process.”cxliii The reliance aspect of stare decisis can be further specified in the idea, explicated in Hilton v. South Carolina Public Railways Commission (1991), that “stare decisis has added force when the legislature … and citizens … have acted in reliance on a previous decision, for in this instance overruling the decision would dislodge settled rights and expectations or require an extensive legislative response.”cxliv

The application of stare decisis in the Abood-to-Janus timeline was aptly described by Michael Kimberly, co-director of Yale Law School’s Supreme Court Clinic and co-author of a union-side Supreme Court amicus brief in Friedrichs v. California Teachers Association (2016):cxlv

“Abood is an old and very well-established precedent, and overruling it would significantly disrupt the legal ecosystem that has grown up around it… As it stands, 23 states and the District of Columbia have enacted statutes in reliance on Abood. These states’ entire collective bargaining schemes would have to be revised, statutorily and in practice, if Abood were overruled. Contracts entered into based on unions’ ability to provide specified services, funded through agency fees, would have to be renegotiated. And government employees’ existing reliance on unions’ abilities to negotiate effectively and to provide contractually required services would be eliminated.”cxlvi

As Kimberly alludes to, abiding by precedent is not only a doctrinal value of the American legal system but also a logistical necessity. Specifically, Justice Alito overlooked a clear jurisprudential truth: “Regardless of whether one takes a strict or lax view of stare decisis, there are sound policy rationales for adherence to Supreme Court precedent, at least to some extent. The doctrine remains functionally desirable because it promotes stability … conserves judicial resources and adds predictability to the everyday affairs of citizens.” cxlvii Even if justices do not agree with previous precedent-setting decisions, they are still discouraged from embarking on major reversals of settled law simply because of the disruption that would ensue within American society. Furthermore, this old stare decisis school of thought, typically referred to as the strong stare decisis tradition, carried a high level of societal and jurisprudential value and thus should have been maintained by the court. Thus, this paper views Justice Alito’s recent adoption of a destabilizing weak stare decisis tradition within Janus through a critical lens.cxlviii

2. Pre-Janus Interpretations of Stare Decisis: An Exploration of Casey

An examination of prior courts’ adherence to strong stare decisis principles helps illustrate the disruptive consequences of moving toward a weaker stare decisis model and overturning precedent in cases like Abood. To accomplish this, this section will analyze Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) as a model of the strong stare decisis tradition and apply the general principles delineated within that case to the Abood/Janus paradigm. Furthermore, stare decisis scholars such as University of Akron School of Law Associate Professor Michael Gentithes generally view Casey as “the acme of the strong stare decisis tradition.”cxlix This assessment is in large part attributed to Casey’s creation of “a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case.”cl

Generally, these considerations are practical methods that push the court to respect and adhere to precedent—even if badly reasoned—unless the justifications for overruling it can pass the muster of the Casey factors. Before considering the merits of overruling precedent, Casey states that the court must discuss whether the ruling in question: (1) “defies practical workability,” (2) falls under a reliance that would make overruling more costly, (3) qualifies as a remnant of abandoned doctrine due to being superseded by newly developed related principles of law, (4) revolves around facts that have changed to the point of “robbing the old rule of significant application or justification.”cli Within Casey, these factors create a philosophy of strong stare decisis that provides future courts with a well-crafted comprehensive outline criteria to guide exceptional cases of overturning precedent.

3. On the Merits of a Strong Stare Decisis Regime

As outlined in Casey, the strong stare decisis model presents a more logical solution to maintaining social order while still providing the possibility for reversing prior precedent in situations in which it is truly necessary. Instances of precedent being “fundamentally incompatible with contemporary society” within American jurisprudential history, such as Plessy v. Ferguson (1896), are still respected under a post-Casey understanding of strong stare decisis clii Overall, the main priorities of a Justice Alito-endorsed lax understanding of stare decisis, such as the ability to overturn completely outdated settled law, can be achieved within a more effective Casey-style structural interpretation of the doctrine. Furthermore, strong stare decisis also reduces the ability of Justices who are ideologically opposed to a certain precedent to manipulate the doctrine and “achieve varying political ends.”cliii As Justice Steven Breyer stated forcefully in his Franchise Tax Board of California v. Hyatt (2018)cliv dissent, the dangerous stunt of overruling precedent when “five Members of a later Court come to agree with earlier dissenters on a difficult legal question” leads to overwhelming negative consequences such as “a public that is increasingly uncertain about which cases the Court will overrule and which cases are here to stay.”clv

Prototyping Janus: Analyzing Justice Alito’s Legal Maneuvers

A. Co-opting the Language of Stare Decisis

To overturn a previous ruling under stare decisis principles, a court needs to rely on a body of evidence that indicates a shift away from old behavior in general society, case law, and jurisprudential inclination. Under the strong stare decisis doctrine, this evolution would indicate abandoned doctrine and non-applicability of prior fact. However, to stay true to the ideals of strong stare decisis, there needs to be a genuine and wholesale societal shift, on both sides of the political spectrum, toward a single set of new values and principles. When Justice Samuel Alito began on his mission to overturn Abood and public sector fair share fees by extension, he did so in a pretextual manner that “invoked stare decisis at seemingly random points” in an “inconsistent—and often incoherent—approach.”clvi Specifically, over almost a decade, Alito incrementally weakened various aspects of Abood to develop a contradictory body of law around the issue of fair share fees, thus artificially manufacturing the “abandoned doctrine” tenet of strong stare decisis. clvii

B. Knox v. SEIU (2012): The Beginning of the Modern Anti-Abood Era

Janus was by no means the first case to criticize Abood. As mentioned in Part A, Justice Alito manipulated the stare decisis doctrine by essentially crafting his own table of authorities through dissents and majority opinions that criticized fair share fees and their applications in several cases leading up to 2018. Janus was actually “the third case to come before the Supreme Court in five years involving public-sector unions’ ability to collect ‘fair share’ (or ‘agency’) fees.”clviii By writing the opinions in this series of pre-Janus cases, Alito developed a base of personally handcrafted precedent on which he launches his ultimate argument against fair share fees. Attorneys Alan Klinger and Dina Kolker encapsulate his strategy by stating that “the prior criticism of Abood that Justice Alito references in [Knox] and Harris was, of course, planted by Justice Alito himself.”clix

The majority ruling in Knox v. Service Employees International Union, Local 1000 (2012) attacks the post-Abood case Chicago Teachers Union v. Hudson (1986)clx and its fair share fee clarification tool: the Hudson notice. This transparency feature can be summarized as “a notice to service fee payers of the "fair share" amount and means of challenging the amount.”clxi By focusing on this point, Alito and his conservative colleagues in the Court began defying stare decisis and destabilizing settled law in a piecemeal fashion. He would soon target Abood’s other accessory and clarificatory cases and eventually use the dicta from Knox and others to launch an offensive against fair share fees as a whole.

Knox centered around California Local 1000 of the SEIU and its failure to send a fresh Hudson notice to non-members when imposing a special increase to non-members' fair-share fees. Additionally, the claims against the public sector union were exacerbated because the fees were to be used for political purposes.clxii Among the many Abood-skeptical messages Alito inserted within Knox, the most blatant was his declaration that “because a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences, the compulsory fees constitute a form of compelled speech and association that imposes a ‘significant impingement on First Amendment rights.’"clxiii In this broad statement,

Alito charges public sector unions with the idea that their collective bargaining activities are inherently political and thus, using non-members' fair share dues for it equates to compelled speech. This is a complete affront to Abood, which he refers to as “something of an anomaly.”clxiv

Alito continues to allege this First Amendment infringement by stating that “overcoming the free-rider problem was an insufficient justification for permitting such an incursion into those First Amendment rights, even when it comes to economic uses of agency fees.”clxv Essentially, Alito is stating that the government’s interest, in this case, is not compelling enough for the specific means of sending a Hudson notice and making available the option to opt out of the fee.clxvi With this claim established, Justice Alito took a minor step with major consequences: he created an opt-in principle by holding that public sector unions “may not exact any funds from nonmembers without their affirmative consent."clxvii In his dissent, Justice Breyer swiftly summarizes the deep offense of stare decisis that Alito committed through his ruling: “[This optin requirement] runs directly contrary to precedent. No party asked that we do so. The matter has not been fully argued in this Court or the courts below.”clxviii In his testimony, Breyer exposes the covert legal operation Alito has undertaken, twisting stare decisis in his favor and engaging in pretextual arguments regarding labor law technicalities to fulfill the larger mission of overturning Abood.

C. Harris v. Quinn (2014): Alito Reveals His Intentions

After taking the successful first step toward his ultimate goal in Knox, Alito did not rest on his laurels and instead continued to deprioritize stare decisis in subsequent fair share fee cases —the next one being Harris v. Quinn (2014).clxix Within the Harris case, Justice Alito left “the question whether Abood should be overruled [for another day]”clxx but would establish dicta that would, in conjunction with Knox, “express substantial misgivings” about the core idea of fair share fees.clxxi The case centered around home care personal assistants (PA), a subcategory of public workers that were “jointly employed by Illinois and by individuals with disabilities.” clxxii On the substance of the case, Justice Alito held that because PAs were not “full-fledged public employees”clxxiii and thus, the state did not have a compelling enough interest to force non-union members in that industry to pay fair share fees. The dicta of the case revolved around more antiAbood rhetoric by Justice Alito, including the statement that “the Abood Court’s analysis is questionable on several grounds.”clxxiv These statements completely disregarded any respect for stare decisis principles and were meant to create the opportunity for another case to swiftly dismantle Abood. Alito’s master plan achieved success when he cited himselfclxxv in Janus: “[Through Harris,] we have therefore refused to extend Abood to situations where it does not squarely control.” Harris’ prohibition of fair share fees for a subset of public workers served as a proof of concept. Going into Janus, Justice Alito knew he was able to effectively wield enough legal power to sidestep the requirements of stare decisis and implement conservative legal theory into reality.

D. Friedrichs v. California Teachers Association (2016): The Dress Rehearsal

There was a Janus before Janus. In 2016, a group of California public school teachers brought a case against the California Teachers Association to the Court with the same overarching goal of striking down Abood and fair share fees.clxxvi In a complaint full of sweeping generalizations, the essence of the grievance was that their First Amendment rights were being compelled because their fair share fees were being used to fund an inherently political system of collective bargaining.clxxvii Although the Court was ready to overturn Abood through Friedrichs, Justice Antonin Scalia died before they could rule on the case, and thus the lower court ruling was affirmed by a 4-4 judgment.clxxviii If this case had gone through, it might have represented a complete rejection of stare decisis because of one simple fact: “[Friedrich’s] argument is not new, it was already dealt with and disposed of 40 years ago in the Supreme Court’s decision in Abood.”clxxix

Janus and the Defeat of Stare Decisis

Following in the footsteps of Friedrichs, conservative political groups and right-to-work foundations such as the Liberty Justice Center and the National Right to Work Legal Defense Fund began to formulate Janus v. American Federation of State, County, and Municipal Employees, Council 31 (2018) as the final blow to public sector fair share fees. The case used similar rhetoric to Friedrichs and centered around Mark Janus, an Illinois Department of Health and Family Services employee challenging an Illinois statute allowing fair share fees. In 2018, through a 5-4 ruling divided along ideological lines, the Supreme Court finally reversed Abood and held that states and public sector unions were prohibited from collecting fair share fees from non-consenting non-union members.clxxx

A. The Fourth Standard: Exacting Scrutiny within the First Amendment

In Janus, Justice Alito did not only manipulate the fundamental principles of stare decisis but also bent First Amendment jurisprudence to work in his favor, doing so specifically through the traditional levels of judicial review. In determining a statute’s constitutionality, courts usually look to the rational basis, intermediate scrutiny, or strict scrutiny tests. clxxxi This standard of review is adjusted depending on the presence of fundamental rights or classes of individuals historically subject to discrimination.clxxxii In Janus, the court was divided along ideological lines on which level of scrutiny should be used to analyze the alleged “compelling of subsidization of speech,” which Justice Alito deemed “actually more dangerous than laws stopping one from speaking.”clxxxiii Alito based his campaign for heightened scrutiny in Janus on weak legal foundations, most notably West Virginia State Board of Education v. Barnette (1943). Barnette, although also discussing political speech, has a wildly dissimilar set of facts. The case centers around public school children saluting the flag and has no connection to employment contracts.clxxxiv Kagan emphasized this point in her dissent and rightfully painted a more coherent connection between Janus and other workplace speech cases including the trifecta of Pickering,clxxxv Connick,clxxxvi and Garcetti. clxxxvii At their core, these three public sector workplace speech cases developed a standard of review applicable to Janus that is “deferential to the government and sometimes is seen as akin to rational basis review.”clxxxviii Essentially, while Kagan contextualized this First Amendment case using the vital context of public employment, Alito de-emphasized this important detail and instead aligned Janus with other landmark free speech cases.

Despite strong and logical points leveraged in Kagan’s dissent, the conservative Court sided with Alito in applying heightened scrutiny in Janus. However, this paper posits the following two considerations: (1) Alito would not be able to convince allies on the Court for a strict scrutiny analysis, as Janus did not fit the case facts necessary,clxxxix and (2) Alito’s procorporate ruling in Janus still would not be fully secure under intermediate scrutiny and its lower significant governmental interest requirement.cxc To solve this, Alito argued for a rarely used fourth level of analysis called “exacting scrutiny”cxci that was used in vastly different contexts in Knox and United States v. Alvarez (2012),cxcii a case regarding the Stolen Valor Act. Using this standard allowed Justice Alito the freedom to state that the majority “did not need to use strict scrutiny because the agency-fee requirement could not survive what Alito called a ‘more permissive standard.’”cxciii

The following table describes the levels of judicial review with “exacting scrutiny” added:

TABLE 1. Levels of Scrutiny in Janus v. AFSCME

Interest Means of Achievement

Strict Compelling Narrowly tailored and least restrictive

Exacting Compelling Narrowly tailored, but not reaching least restrictive means. Instead, alternative means of serving that interest do not exist that are "significantly less restrictive of associational freedoms.”cxcv

Intermediate Significant or important

Substantially related

When used?

Content-based laws, viewpoint-based laws, and statutes targeting a specific religion.cxciv

Restrictions on speech in campaign finance, election law, and compelled disclosures.cxcvi

Rational Legitimate Rationally related

When statute negatively affects certain protected classes, equal protection challenges to gender classifications, some First Amendment cases, e.g. mass media, adult entertainmentcxcvii

Cases with no fundamental rights/suspect classifications.cxcviii implanted—by Justice Alito himself—into Knox and Harris. The mention of the standard in Harriscxcix was justified by its presence in Knox, cc which derived the principles behind the standard from the commercial speech compelled advertising case United States v. United Foods (2001)—which revolved around the promotion of mushrooms.cci Furthermore, Alito had engaged in a completely theoretical analysis of United Foods, as the case did not even include the word “exacting”.ccii When compared to the traditional three levels of scrutiny developed through decades of jurisprudence, any discerning spectator would undoubtedly notice that Justice Alito’s application of exacting scrutiny in Janus was a feat of mental gymnastics. Furthermore, exacting scrutiny was even more unclear due to its synonymity with strict scrutiny within Alvarez.cciii In warping exacting scrutiny’s meaning and purpose to fit his needs in Janus, Alito once again manipulates legal principles as he did in Knox and Harris to promote his ideological goals, empowered by the conservative majority in the Janus Court. In Janus, Alito and his majority’s lax adjustment of First Amendment judicial review standards played an integral part in their successful manipulation of stare decisis and the consequent debilitation of public sector unions.

B. Poorly Reasoned: The Triumph of the Weak Stare Decisis Tradition

After grounding Janus within the context of “exacting scrutiny,” Justice Samuel Alito simply needed to justify his ideological dismantlement of the previously reliable strong stare decisis tradition to achieve Abood’s reversal. Alito did so in a mechanical fashion, revolving around the claim that Abood was poorly reasoned based on the Burger Court’s misinterpretation of precedential cases Railway Employees v. Hanson (1956) and Machinists v. Street (1961). cciv Michael Gentithes states that “by discussing ‘the quality of Abood’s reasoning’ in depth and before the other factors, Janus strongly suggested that a precedent’s reasoning should be the primary discussion point when determining whether to overrule a prior decision.”ccv Sticking to the idea of strong stare decisis, the responsible method of interpreting precedent would not accept Alito’s subjective assertion of poor reasoning in any compelling cause for reversal. Instead, it would simply be seen as a cause to warrant consideration of reversal and would need much more substantial evidence of untenability. According to Justice John Paul Stevens, in his Citizens United (2010) partial dissent: “To do any meaningful work in supporting the rule of law, [stare decisis] must at least demand a significant justification, beyond the preferences of five Justices, for overturning settled doctrine.”ccvi

C. Calling for Backup: Addressing Alito’s Conservative Supporters Republican think tanks and organizations with vested corporate interests immediately began attempting to justify the result in Janus and the dire consequences that would certainly tear through American labor. One prominent example, the Heritage Foundation, simply assumed that the 1977 Abood ruling was a constitutional misinterpretation without much explication: “The court is more open to correcting errors in past constitutional cases, such as Abood, than in other categories of cases.”ccvii This comment is shockingly ideological and is accompanied by no fact pattern that would suggest any constitutional error in Abood. Heritage Senior Legal Fellow Thomas Jipping also applauded Alito’s exploitative approach to rebuking stare decisis in Knox, Harris, Friedrichs, and Janus, which “could be useful in the future when other precedents might be up for reversal or retention.”ccviii The CATO Institute’s Ilya Shapiro goes even further in twisting the truth, declaring that Janus “advances noble [stare decisis] objectives by providing both judges and practitioners with a stable, logical system for determining when adherence to the Constitution mandates abandoning erroneous precedent.”ccix As proven in Sections II.B, II.C, and III.B, the weak stare decisis the current conservative court is moving toward specifically promotes a lax model of the doctrineccx that is inherently less stable in its explicit endorsement of overturning precedent. Jipping and Shapiro’s lackluster arguments defending Janus are just two examples of Alito’s weaponization of stare decisis. Conservatives across the nation, as seen in this Section, are beginning to use the “piecemeal” modelccxi to “unleash judges, now and in the future, to intervene in economic and regulatory policy,” as Justice Kagan warned in her Janus dissent.ccxii

D. Mission Accomplished: Janus’ Damaging Consequences

The majority’s shift in Janus toward considering poor reasoning as a major precedent reversal factor marked the Supreme Court’s transition into an uncertain future of weak stare decisis jurisprudence. As Justices continue to use Janus as the “precedent on precedents,”ccxiii

America will begin to see two worrying societal phenomena: (1) further politicization of the court at the expense of jurisprudential stability and (2) a steep decline in the legitimacy of the Court. These two trends are already occurring—with destructive consequences. Dobbs v. Jackson Women's Health Organization (2022)ccxiv was the result of Justice Alito once again manipulating jurisprudential truths, emboldened by a conservative majority driven by “politics rather than principle.”ccxv Furthermore, during an era where public confidence in governmental institutions is generally tumbling, confidence in and approval of the Supreme Court has plummeted. According to Gallup, “25% of Americans have confidence in the Supreme Court in 2022, down from 36% in 2021”--the lowest numbers Gallup has seen in nearly fifty years.ccxvi

Conclusion

The piecemeal invalidation of Abood’s public sector fair share fee by Justice Samuel Alito, and the ideological reconfiguration of the Supreme Court and its principles that came along with it, expose sobering realities about American jurisprudence. Through the Abood to

Janus timeline, the stabilizing force of a strong stare decisis tradition has been whittled away and replaced by a weaker, more uncertain, and easily politicized interpretation of precedent. In addition, conservative elements in the judiciary are increasingly exploiting the First Amendment in a wide variety of cases that implicate speech to achieve political goals. Justice Samuel Alito’s cunning legal maneuvers in Janus as well as in Knox, Harris, and Friedrichs demonstrate that a singular person can force his opinions on the entirety of public sector unions and the nation at large. Given our current conservative supermajority within the Supreme Court,ccxvii it is difficult to see a reversal back to a more stable status quo anytime soon. However, by carefully analyzing each step in the inconsistent and chaotic journey Alito took to arrive at Janus, the next destructive Supreme Court scheme may be easier to detect.

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Todd Lyon. “SCOTUS Hands Significant Defeat To Both Public Sector Unions And National Labor Movement.” i Elizabeth Manley, “Intimate Violations: Women and the ‘Ajusticiamiento’ of Dictator Rafael Trujillo, 1944-1961.” The Americas 69(1):61-94. Retrieved January 13, 2022 (doi:10.1353/tam.2012.005) ii Ana-Maurine Lara, Streetwalking: LGBTQ Lives and Protest in the Dominican Republic (Rutgers University Press, 2021), 57. iii Id, 107. iv Laurel Westbrook and Kristen Schilt, “Transgender People, Gender Panics, and the Maintenance of the Sex/Gender/Sexuality System.” Gender & Society, (2013) 28(1):32-57. v Id, 72. vi Id, 59. vii Lilian Bobea, “Democratizing Violence: The Case of the Dominican Republic,” Western Hemisphere Security Analysis Center, (2011) 34, https://digitalcommons.fiu.edu/whemsac/34 viii Cathy J. Cohen, “Punks, Daggers, and Welfare Queens,” GLQ: A Journal of Lesbian & Gay Studies, (1997) 3:437-465. ix Neal Caren, Kenneth T. Andres, and Todd Lu, “Contemporary Social Movements in a Hybrid Media Environment.” x Bonilla Yarimar and Rosa Jonathan, “#Ferguson: digital protest, hashtag ethnography, and the racial politics of social media in the United States,” American Ethnology, (2015) 42(1):4-17. xi Caren, 452. xii David A. Snow, et al., “Frame Alignment Processes, Micromobilization, and Movement Participation,” American Sociological Review (1986) 464. xiii Id. 474 xiv “Informe de Resultados Encuesta Nacional LGBTI 2020 En La República Dominicana” xv Mark Padilla and Daniel Castellanos, “Discourses of Homosexual Invasion in the Dominican Global Imaginary,” Sexuality Research and Social Policy, (2008) 5:31-44. xvi Audre Lorde, “Age, Race, Class, and Sex: Women Redefining Difference,” Paper delivered at the Copeland Colloquium, Amherst College (1990) 1. xvii Lauren Berlant and Michael Warner, “Sex in Public,” Critical Inquiry (1998) 24(2):561. xviii “Informe de Resultados Encuesta Nacional LGBTI 2020 En La República Dominicana.” xix Cohen, 448. xx Id. 458 xxi Id. 459 xxiixxi Snow, 475 xxiii Id. xxiv U.S. Const. amend. XIV §1. xxv Legal discussion on Due Process Clause interpretation includes “Bill of Rights” Incorporation, procedural due process, substantive due process, etc. See Chapman, Nathan, and Kenji Yoshino. “The Fourteenth Amendment Due Process Clause.” National Constitution Center. https://constitutioncenter.org/theconstitution/articles/amendment-xiv/clauses/701. xxvi Pennoyer v. Neff, 95 U.S. 714 (1878) xxvii In his opinion, Justice Black pointed out that the trend of the expanding scope of court jurisdiction is “attributable to the fundamental transformation of our national economy over the years,” due to a rise in cross-state business transactions. McGee v. International Life Ins. Co., 355 U.S. 220 (1957). xxviii International Shoe Co. v. Washington, 326 U.S. 310 (1945). xxix Merriam-Webster Legal Dictionary. The thesis of this paper is on the criteria for whether a court can exercise personal jurisdiction. In rem jurisdiction and quasi in rem jurisdiction will not be discussed in this paper. xxx Brilmayer, Lea, Jennifer Haverkamp, Buck Logan, Loretta Lynch, Steve Neuwirth, and Jim O'Brien. “A General Look at General Jurisdiction.” Texas Law Review 66, no. 4 (March 1988): 721–84. xxxi See, Pennoyer v. Neff (states have jurisdiction power over parties within states’ territory); Skiriotes v. Florida, 313 U.S. 69 (1941) (states have jurisdiction over its citizens regardless the question of territorial limit). xxxii Brilmayer et al. “A General Look at General Jurisdiction.” (Place of incorporation justifies general jurisdiction for three reasons. First, the corporation intentionally build contact with the state to “obtain the benefits of that state's substantive and procedural laws.” Secondly, the corporation is constantly present in its place of incorporation. Finally, the “incorporation process itself provides notice of the potential for judicial jurisdiction.”). xxxiii Helicopteros Nacionales v. Hall, 466 U.S. 408 (1984). xxxiv Id. xxxv Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437 (1952) xxxvi Appearances in the forum state for any purposes (other than to challenge the court’s jurisdiction) could be considered as volunteer submission. See, Western Loan & Savings Co. v. Butte & Boston Min. Co., 210 U.S. 368 (1908); Houston v. Ormes, 252 U.S. 469 (1920). xxxvii von Mehren, Arthur, and Donald Trautman. “Jurisdiction to Adjudicate: A Suggested Analysis.” Harvard Law Review 79, no. 6 (April 1966): 1121–79. xxxviii International Shoe Co. v. Washington xxxix United States Senate. “The Interstate Commerce Act Is Passed.” https://www.senate.gov/artandhistory/history/minute/Interstate_Commerce_Act_Is_Passed.htm xl International Shoe Co. v. Washington xli Id. xlii “That continuous activity of some sorts within a state is not enough to support the demand that the corporation be amenable to suits unrelated to that activity.” Id. xliii Id. xliv McGee v. International Life Ins. Co. (International Life Insurance company, a Texas company, holds no office and does not conduct any business in California. However, the company “mailed a reinsurance certificate to petitioner's son in California”, which qualifies as a minimum contact with the forum and the company is thus subject to Californian court’s specific jurisdiction). xlv Reno v. ACLU, 521 U.S. 844 (1997). xlvi The uniqueness of internet as a medium is also recognized by SCOTUS. See, Id. xlvii McGee v. International Life Ins. Co. xlviii Id. xlix Again, referring to the hypothetical example, the detailed information regarding the account may be concealed in the server of Microsoft, and Microsoft may choose not to disclose the information for the sake of consumers’ data privacy. Microsoft Corp. v. United States, 829 F.3d 197, 202 (2d Cir. 2016). To resolve the issue of the proposed example, some scholars proposed to use the IP address as the identification of the location. See, Kleven, Adam. “Minimum Virtual Contacts: A Framework for Specific Jurisdiction in Cyberspace.” Michigan Law Review 116, no. 5 (2018): 785–810. https://doi.org/10.36644/mlr.116.5.minimum. For many internet jurisdiction cases this paper examines, the court continue use the party’s domicile when making decisions. See, Part II; Part III. l Inset Systems, Inc. v. Instruction Set, Inc., 937 F. Supp. 161 (D. Conn. 1996); Heroes, Inc. v. Heroes Found., 958 F. Supp. 1 (D.D.C. 1996); Maritz, Inc. v. Cybergold, Inc., 947 F. Supp. 1328 (E.D. Mo. 1996); Bensusan Restaurant Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996). li See, Inset Systems, Inc. v. Instruction Set, Inc.; Heroes, Inc. v. Heroes Found lii The court justifies its ruling through a comparison of traditional advertisement and digital advertisement. The fact that online advertisement can be re-accessed and available to greater number of people makes the connection between the defendant and the forum more substantial. See, Inset Systems, Inc. v. Instruction Set, Inc. liii Id. liv This happens because website is not bounded by geographical space, but a borderless virtual world. See, Hy Cite Corp. v. Badbusinessbureau.com, L.L.C., 297 F. Supp. 2d 1154, 1159 (W.D. Wis. 2004). lv Heroes, Inc. v. Heroes Found.; Telco Communications v. An Apple a Day, 977 F. Supp. 404 (E.D. Va. 1997). lvi Few years after the Inset ruling, several court decisions undermine Inset case’s universal jurisdiction. See, Rannoch, Inc. v. Rannoch Corp., 52 F. Supp. 2d 681, 686 (E.D. Va. 1999); Roche v. Worldwide Media, Inc., 90 F. Supp. 2d 714, 719-20 (E.D. Va. 2000); Digital Control, Inc. v. Boretronics, Inc., 161 F. Supp. 2d 1183, 1186 (W.D. Wash. 2001). lvii Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997). lviii Id. lix Id. lx Id. lxi Id. lxii Id. lxiii Id. lxiv Ironically, the Pennsylvanian court decided its jurisdiction authority mainly following the minimum contact doctrine. The court argued that the defendant intentionally sent information to Pennsylvania citizens for potential commercial gain. The defendant also conducted e-commerce with internet users of the forum state, which constitutes “purposeful availment.” The action of the defendant is enough to establish minimum contact with the forum, and since the cause of action arises out of those specific services it provided to forum state citizens, specific jurisdiction is valid. See, Id. lxv See, Mink v. AAAA Dev. LLC, 190 F.3d 333, 336-37 (5th Cir. 1999); Mid City Bowling Lanes & Sports Palace, Inc. v. Ivercrest, 35 F. Supp. 2d 507 (E.D. La. 1999); Quick Technologies, Inc. v. Sage Group PLC, 313 F.3d 338 (5th Cir. 2003). lxvi McMunigal, Kevin. “Desert, Utility, and Minimum Contacts: Toward a Mixed Theory of Personal Jurisdiction.” 108 Yale Law Journal 189 (1998). https://doi.org/10.2307/797473. lxvii lxviii Mink v. AAAA Dev. LLC. lxix Id. lxx Id. lxxi Mid City Bowling Lanes & Sports Palace, Inc. v. Ivercrest. lxxii Barrett v. Catacombs Press, 44 F. Supp. 2d 717 (E.D. Pa. 1999). lxxiii Calder v. Jones, 465 U.S. 783 (1984) lxxiv Scholars fear that the fixed use of Zippo test may lead to a decrease in the use of the website to reduce the likelihood of being sued in other states. See, Bales and Van Wert. “Internet Web Site Jurisdiction.” lxxv The court argues that the potential interactivity is “not insubstantial”, and the website would “suffice for personal jurisdiction under the middle category in Zippo.” See, Millennium Enterprises v. Millennium Music, LP, 33 F. Supp. 2d 907 (D. Or. 1999). lxxvi Id. lxxvii Id. lxxviii See, Reid. “Operationalizing the Law of Jurisdiction: Where in the World Can I Be Sued for Operating a World Wide Web Page?”; Bales and Van Wert. “Internet Web Site Jurisdiction.” lxxix Will be more explicitly discussed in Part III. lxxx In fact, the need to accommodate change in commercial environment was never explicitly mentioned in International Shoe. See, International Shoe Co. v. Washington. The attention towards changing economic context was mentioned in McGee. See, McGee v. International Life Ins. Co. lxxxi Stein, Allan. “Styles of Argument and Interstate Federalism in the Law of Personal Jurisdiction.” Texas Law Review 65, no. 4 (March 1987). lxxxii International Shoe Co. v. Washington. lxxxiii World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980). lxxxiv Id. lxxxv Id. lxxxvi Id. lxxxvii Zippo Mfg. Co. v. Zippo Dot Com, Inc. lxxxviii Id. lxxxix Hanson v. Denckla, 357 U.S. 235 (1958). xc Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). xci CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir. 1996). xcii Id. xciii Id. (Citing Southern Mach. Co. v. Mohasco Industries, Inc., 401 F.2d 374 (6th Cir. 1968)). xciv Calder v. Jones xcv In Calder v. Jones, the petitioner (in Florida) published magazine with its largest circulation in California (the forum). Thus, the action expressly aims at the forum. The circulation of the petitioner’s publishment has caused emotional distress of the respondent and damaged her professional reputation in the forum. Thus, the activity inflicted harm, and the “brunt” of the harm was suffered in the forum. As a result, the California court does have personal jurisdiction authority over the petitioner. See, Id. xcvi EDIAS Software Intern. v. BASIS Intern. Ltd., 947 F. Supp. 413 (D. Ariz. 1996). xcvii Id. xcviii International Shoe Co. v. Washington. xcix World-Wide Volkswagen Corp. v. Woodson. (Referring McGee v. International Life Ins. Co.; Kulko v. Superior Ct., 436 U.S. 84 (1978).). c For the discussion on specific jurisdiction, see Part I A. In Best Van Lines v. Walker, although the defendant accepts donations through the website, potentially constituting minimum contact with the forum, the plaintiff’s claim does not arise from the donation feature. Since the activity in question is unrelated to the cause of action in this lawsuit, the court does not have personal jurisdiction over the defendant. See, Best Van Lines v. Walker, 490 F.3d 239 (2d Cir. 2007). ci Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. To Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 399 (2006) cii Janus v. American Federation of State, 138 S. Ct. 2448 (Supreme Court 2018) (Kagan, J., dissenting). ciii Roe v. Wade, 410 US 113 (Supreme Court 1971); Planned Parenthood of Southeastern Pa. v. Casey, 505 US 833 (Supreme Court 1992). civ Planned Parenthood of Southeastern Pa. v. Casey, 505 US. cv Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (Supreme Court 2021). cvi See generally David Litt, “A Court Without Precedent,” The Atlantic, July 24, 2022, https://www.theatlantic.com/ideas/archive/2022/07/supreme-court-stare-decisis-roe-v-wade/670576/; Ilya Somin, “Dobbs, Abortion, and Stare Decisis,” Reason (blog), accessed December 14, 2022, https://reason.com/volokh/2022/06/25/dobbsabortion-and-stare-decisis/; Thomas Newman, “‘Dobbs’ and the Doctrine of Stare Decisis,” New York Law Journal, accessed December 14, 2022, https://www.law.com/newyorklawjournal/2022/09/06/dobbs-and-the-doctrine-of-staredecisis/. cvii See infra Section I.A and I.B (defining and critically examining the concept of fair share fees) cviii “Union Security Agreement,” LII / Legal Information Institute, September 2021, https://www.law.cornell.edu/wex/union_security_agreement. cix “Agency Shop,” LII / Legal Information Institute, September 2021, https://www.law.cornell.edu/wex/agency_shop. cx “Janus and Fair Share Fees: The Organizations Financing the Attack on Unions’ Ability to Represent Workers,” Economic Policy Institute, February 21, 2018, https://www.epi.org/publication/janus-and-fair-share-fees-the-organizationsfinancing-the-attack-on-unions-ability-to-represent-workers/. cxi “Agency Shop.” cxii “Janus and Fair Share Fees.” cxiii “Debate: How Should Unions Deal With Free Riders?,” Labor Notes, May 4, 2018, https://www.labornotes.org/exclusiverep. cxiv U.S. Const. amend. I cxv “Protection of Core Political Speech – Civil Rights,” US Legal, accessed December 14, 2022, https://civilrights.uslegal.com/freedom-of-speech-and-expression/protection-of-core-political-speech/. cxvi David Hudson, “Compelled Speech,” accessed December 14, 2022, https://www.mtsu.edu/first-amendment/article/933/compelled-speech. cxvii Terence Pell, “Symposium: The Free Speech Right of Public Employees Not to Pay Union Dues,” SCOTUSblog (blog), December 21, 2017, https://www.scotusblog.com/2017/12/symposium-free-speech-right-public-employees-not-pay-uniondues/. cxviii Todd Lyon, “SCOTUS Hands Significant Defeat To Both Public Sector Unions And National Labor Movement,” Fisher Phillips, June 27, 2018, https://www.fisherphillips.com/news-insights/scotus-hands-significant-defeat-to-both-public-sectorunions-and-national-labor-movement.html. cxix Peter Montgomery, “Justice Samuel Alito’s Deep Roots in the American Right,” The American Prospect, July 10, 2014, https://prospect.org/api/content/4ff98e7c-7c25-57e8-9fe1-53e437bab8ae/. cxx “Union Security Agreement.” cxxi “Right to Work Frequently-Asked Questions,” National Right to Work Foundation, accessed December 11, 2022, https://www.nrtw.org/right-to-work-frequently-asked-questions/. cxxii “Right to Work States,” National Right to Work Foundation, 2022, https://www.nrtw.org/right-to-work-states/. cxxiii Adam A. Millsap, “Right-To-Work Laws Are Good For Workers,” Forbes, accessed December 11, 2022, https://www.forbes.com/sites/adammillsap/2019/10/23/right-to-work-laws-are-good-for-workers/. cxxiv Aaron Tang, “Life after Janus,” Columbia Law Review 119, no. 3 (2019): 677–762. cxxv See infra note 9, at 13. The traditional strategy for unions to support exclusive representation relates to the idea that the singular union serving the bargaining unit would maintain more leverage and operate with confidence knowing that there would be no possibility of competition between representatives. cxxvi United States National Labor Relations Board Office of the General Counsel, Basic Guide to the National Labor Relations Act (The Office, 1997). cxxvii “Exclusive Representative’s Rights and Obligations | FLRA,” accessed December 11, 2022, https://www.flra.gov/exclusive_representation. cxxviii “Right to Fair Representation,” National Labor Relations Board, accessed December 11, 2022, https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/employees/right-to-fair-representation. cxxix Fred Glass, “26. The Rise of Public Sector Unionism,” in 26. The Rise of Public Sector Unionism (University of California Press, 2016), 349, https://doi.org/10.1525/9780520963344-029. Even Franklin Delano Roosevelt “justified the exclusion of public workers from the National Labor Relations Act because of ‘the special relationship and obligations of public servants to the public itself and the government.’” cxxx Abood v. Detroit Bd. of Ed., 431 US 209 (Supreme Court 1976). cxxxi Abood v. Detroit Bd. of Ed., 431 US at 234. cxxxii Abood v. Detroit Bd. of Ed., 431 US at 236. cxxxiii Abood v. Detroit Bd. of Ed., 431 US at 232. cxxxiv Daniel Hemel and David Louk, “Is Abood Irrelevant?,” University of Chicago Law Review Dialogue 82 (2016 2015): 232. cxxxv Abood v. Detroit Bd. of Ed., 431 US at 224. cxxxvi Abood v. Detroit Bd. of Ed., 431 US at 220. cxxxvii Abood v. Detroit Bd. of Ed., 431 US at 235. cxxxviii Abood v. Detroit Bd. of Ed., 431 US at 235–36. cxxxix Michelle Quach, “The Janus Decision and the Future of Private-Sector Unionism,” Hastings Business Law Journal 16, no. 1 (2020): 125. Quach also states that the Court has moved toward major criticisms of Abood by arguing that ‘its rationale has becoming troubling and problematic over time.” See infra Section II.B.2 for a discussion regarding the use of time as a factor in stare decisis considerations. cxl Johannah C. Pizzini, “Janus v. American Federation of State, County, and Municipal Employees: An Unprecedented Departure from Precedent Casenotes,” Loyola Law Review 65, no. 2 (2019): 478. (Quoting Abood v. Detroit Bd. Of Ed., 431 US at 235) cxli Pizzini, 478. (Quoting Abood v. Detroit Bd. Of Ed., 431 US at 235) cxlii Michael Gentithes, “Janus-Faced Judging: How the Supreme Court Is Radically Weakening Stare Decisis,” William & Mary Law Review 62, no. 1 (October 1, 2020): 91. cxliii Payne v. Tennessee, 501 US 808 (Supreme Court 1991). cxliv Hilton v. South Carolina Public Railways Comm’n, 502 US 197 (Supreme Court 1991). cxlv See infra Section III.D (Friedrichs was seen as a prototype of Janus and a ‘warning sign’ for unions, according to Justice Alito, that should have alerted unions as to the impending end of public sector fair share fees and ignited preemptive change to union funding models). cxlvi Michael Kimberly, “Symposium: The Importance of Respecting Precedent,” SCOTUSblog (blog), December 20, 2017, https://www.scotusblog.com/2017/12/symposium-importance-respecting-precedent/. The amicus brief he authored on behalf of several constitutional law scholars was in support of the unions in Friedrichs and is of particular interest due to the assertion that “if anything has changed [since Abood], moreover, it is that the burden on employees’ speech interests has lessened.” This line of argumentation’s success debilitates the claim of the Janus majority that evolving times requires a reconsideration of Abood cxlvii James Tilghman, “Restoring Stare Decisis in the Wake of Janus v. AFSCME, Council 31,” NYLS Law Review 64, no. 2 (January 1, 2020): 142. cxlviii Gentithes, “Janus-Faced Judging,” 87. cxlix Gentithes, 97. cl Planned Parenthood of Southeastern Pa. v. Casey, 505 US at 854. cli Planned Parenthood of Southeastern Pa. v. Casey, 505 US at 855. clii Tilghman, “Restoring Stare Decisis in the Wake of Janus v. AFSCME, Council 31,” 137. cliii Tilghman, 138. clivSee infra Section IV.D, which analyzes how the post-Janus cases of Franchise Tax Bd. of California v. Hyatt (2018) and Knick v. Township of Scott (2019) leverage the Roberts Court’s transition away from Casey-esque strong stare decisis principles and toward a weak view of the doctrine to overrule decades-long principles entrenched in American society. clv Franchise Tax Bd. of California v. Hyatt, 139 S. Ct. 1485 (Supreme Court 2019) (Breyer, J., dissenting). clvi Tilghman, “Restoring Stare Decisis in the Wake of Janus v. AFSCME, Council 31,” 138. clvii See supra Section II.B.2 for a full description of the four factors Casey outlined in its adoption of strong stare decisis principles. clviii “Janus and Fair Share Fees.” clix Alan M. Klinger and Dina Kolker, “Public Sector Unions Can Survive Janus,” ABA Journal of Labor and Employment Law 34, no. 2 (2020 2019): 283. clx Teachers v. Hudson, 475 US 292 (Supreme Court 1986). clxi Jabari A. Willis and Mark R. Bresee, “US Supreme Court Requires Unions to Receive Consent from Non-Members for Special Fee Assessments and to Provide Extra ‘Hudson Notice’ for Special Fees,” June 29, 2012, https://www.aalrr.com/EdLawConnectBlog/us-supreme-court-requires-unions-to-receive-consent-from-non-members-forspecial-fee-assessments-and-to-provide-extra-hudson-notice-for-special-fees. clxii Ross Runkel, “When Union Fees Go up, Must a ‘Hudson Notice’ Go Out?,” SCOTUSblog (blog), January 5, 2012, https://www.scotusblog.com/2012/01/when-union-fees-go-up-must-a-“hudson-notice”-go-out/. clxiii Knox v. Service Employees Intern. Union, 567 US 298 (Supreme Court 2012). clxiv Knox v. Service Employees Intern. Union, 567 US at 11. clxv Knox v. Service Employees Intern. Union, 567 US at 10. clxvi Quach, “The Janus Decision and the Future of Private-Sector Unionism,” 1054. clxvii Knox v. Service Employees Intern. Union, 567 US 298 (Supreme Court 1000). clxviii Knox v. Service Employees Intern. Union, 567 US at 13. clxix Harris v. Quinn, 134 S. Ct. 2618 (Supreme Court 2014). clxx Dylan Matthews, “6 Excerpts That Explain the Supreme Court’s Big Anti-Union Ruling,” Vox, June 27, 2018, https://www.vox.com/2018/6/27/17509460/supreme-court-janus-afscme-public-sector-union-alito-kagan-dissent. (Quoting Janus v. American Federation of State, 138 S. Ct. at 7 slip op., at 7.) clxxi Hemel and Louk, “Is Abood Irrelevant?,” 228. clxxii Hemel and Louk, 233. (Quoting Harris v. Quinn, 134 S. Ct. 2618 at 2636-37) clxxiii Benjamin I. Sachs, “Agency Fees and the First Amendment,” Harvard Law Review 131, no. 4 (2018 2017): 1055. clxxiv Harris v. Quinn, 134 S. Ct. at 2. clxxv With this in mind, Alito’s use of the pronoun “we” is instructive and reflects some adept political maneuvering, as the majority opinions of Knox and Harris were both written by him. clxxvi Friedrichs v. California Teachers Association, 136 S. Ct. 1083 (Supreme Court 2016). clxxvii “Janus and Fair Share Fees.” clxxviii Sachs, “Agency Fees and the First Amendment,” 1046. clxxix “Janus and Fair Share Fees.” (The exact wording of the argument already ruled against in Abood: “The appellants’ second argument is that in any event collective bargaining in the public sector is inherently ‘political’ and thus requires a different result under the First and Fourteenth Amendments.” Abood v. Detroit Bd. of Ed., 431 U.S. 209, 227 (1977)) clxxx Janus v. American Federation of State, 138 S. Ct. clxxxi “Rational Basis Test,” LII / Legal Information Institute, accessed December 13, 2022, https://www.law.cornell.edu/wex/rational_basis_test; “Janus v. AFSCME, 585 U.S. ___ (2018),” Justia Law, accessed December 14, 2022, https://supreme.justia.com/cases/federal/us/585/16-1466/. clxxxii “Suspect Classification,” LII / Legal Information Institute, accessed December 13, 2022, https://www.law.cornell.edu/wex/suspect_classification. clxxxiii Janus v. American Federation of State, 138 S. Ct. at 2464. clxxxiv See generally West Virginia Bd. of Ed. v. Barnette, 319 US 624 (Supreme Court 591). clxxxv Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 US 563 (Supreme Court 1968). clxxxvi See generally Connick v. Myers, 461 US 138 (Supreme Court 1983). clxxxvii See generally Garcetti v. Ceballos, 547 US 410 (Supreme Court 2006). clxxxviii Clay Calvert, “Is Everything a Full-Blown First Amendment Case after Becerra and Janus? Sorting out Standards of Scrutiny and Untangling ‘Speech as Speech’ Cases from Disputes Incidentally Affecting Expression,” Michigan State Law Review 2019, no. 1 (2019): 129. clxxxix David Hudson, “Strict Scrutiny,” accessed December 13, 2022, https://www.mtsu.edu/first-amendment/article/1966/strict-scrutiny. See infra Table 1 cxc “Intermediate Scrutiny,” LII / Legal Information Institute, accessed December 14, 2022, https://www.law.cornell.edu/wex/intermediate_scrutiny.

Fisher Phillips, June 27, 2018. https://www.fisherphillips.com/news-insights/scotus-hands-significantdefeat-to-both-public-sector-unions-and-national-labor-movement.html.

Totenberg, Nina. “The Supreme Court Is the Most Conservative in 90 Years.” NPR, July 5, 2022, sec. Reproductive rights in America. https://www.npr.org/2022/07/05/1109444617/the-supreme-court-conservative.

LII / Legal Information Institute. “Union Security Agreement,” September 2021. https://www.law.cornell.edu/wex/union_security_agreement.

United States v. United Foods, Inc., 533 US 405 (Supreme Court 2001).

US v. Alvarez, 567 US 709 (Supreme Court 2012).

West Virginia Bd. of Ed. v. Barnette, 319 US 624 (Supreme Court 591).

Willis, Jabari A., and Mark R. Bresee. “US Supreme Court Requires Unions to Receive Consent from NonMembers for Special Fee Assessments and to Provide Extra ‘Hudson Notice’ for Special Fees,” June 29, 2012. https://www.aalrr.com/EdLawConnectBlog/us-supreme-court-requires-unions-to-receive-consentfrom-non-members-for-special-fee-assessments-and-to-provide-extra-hudson-notice-for-special-fees.

Annual Review of Sociology, (2020) Vol 46 (January): 443-65.

Some suggests that to “have more than one way” to determine the minimum contacts on internet “does not make sense.” See, Reid, Amanda. “Operationalizing the Law of Jurisdiction: Where in the World Can I Be Sued for Operating a World Wide Web Page?” Communication Law and Policy 8, no. 2 (2003): 227–65. https://doi.org/10.1207/s15326926clp0802_03. Some proposes a universal framework for the internet jurisdiction determination. Bales, Richard, and Suzanne Van Wert. “Internet Web Site Jurisdiction.” Journal of Computer & Information Law 20, no. 1 (2011): 21–56.