How to Follow Supreme Court Precedent

The Sixth Circuit recognizes that Supreme Court precedent is binding until overruled by the Supreme Court.

|The Volokh Conspiracy |

Today, in Thompson v. Marietta Education Association, the U.S. Court of Appeals for the Sixth Circuit rejected a constitutional challenge to a law requiring government employees to accept exclusive representation by a public sector union. This requirement would seem to be in conflict with the principles underlying Janus v. AFSCME, but an older as-yet-not-overturned Supreme Court precedent upheld such arrangements, so the Sixth Circuit panel's hands were tied.

Judge Thapar wrote for the court. His brief opinion for the court begins:

By signing on the dotted line, public employees accept the government as their employer. In Ohio, the law requires them to also accept a union as their exclusive bargaining representative. It's a take-it-or-leave-it system—either agree to exclusive representation, which is codified in state law, or find a different job. This take-it-or-leave-it system is in direct conflict with the principles enunciated in Janus v. AFSCME, 138 S. Ct. 2448 (2018). But when the Supreme Court decided Janus, it left on the books Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984). And because Knight directly controls the outcome of this case, we affirm the district court's decision upholding the challenged Ohio law.

Later in the opinion, Judge Thapar writes:

Thompson's first claim is that Ohio law impermissibly allows the Marietta Education Association to speak on her behalf during collective-bargaining sessions, and that this amounts to compelled speech and association in violation of the First Amendment. See Ohio Rev. Code §§ 4117.05(A), 4117.11(B)(6).

The First Amendment protects "both the right to speak freely and the right to refrain from speaking at all." Wooley v. Maynard, 430 U.S. 705, 714 (1977). Likewise, "[f]reedom of association . . . plainly presupposes a freedom not to associate." Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984). These rights capture the more basic truth that "[f]orcing free and independent individuals to endorse"—either implicitly or explicitly—"ideas they find objectionable is always demeaning." Janus, 138 S. Ct. at 2464. The Supreme Court has thus explained that "designating a union as the exclusive representative of nonmembers substantially restricts the nonmembers' rights." Id. at 2469. And the Court has deemed exclusive public sector bargaining "a significant impingement on associational freedoms that would not be tolerated in other contexts." Id. at 2478.

Given the Supreme Court's language, one might think that Thompson should prevail. Yet Supreme Court precedent says otherwise. And lower courts must follow Supreme Court precedent. See Agostini v. Felton, 521 U.S. 203, 237 (1997).

The primary precedent blocking Thompson's way is Knight. There, a group of non-union community college instructors challenged Minnesota's collective-bargaining statute. They objected to the State's recognition of an exclusive representative to speak for all employees at "meet and confer" sessions. These sessions concerned subjects outside the scope of mandatory collective bargaining. See 465 U.S. at 274–78. But the Supreme Court rejected the challenge. It held that Minnesota had "in no way restrained [the instructors'] freedom to speak . . . or their freedom to associate or not to associate with whom they please." Id. at 288. To the contrary, the Court held that the instructors' First Amendment rights were not unduly infringed because they remained "free to form whatever advocacy groups they like" and were "not required to become members of [the union]." Id. at 289.

Knight controls here. If allowing exclusive representatives to speak for all employees at "meet and confer" sessions does not violate the First Amendment, we see no basis for concluding that the result should be different where the union engages in more traditional collective bargaining activities. It appears that every other circuit to address the issue has agreed. . . .

To be sure, Knight's reasoning conflicts with the reasoning in Janus. But the Supreme Court did not overrule Knight in Janus. And when an earlier Supreme Court decision "has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989). We do so here.

This strikes me as the proper way for a lower court to handle controlling Supreme Court precedent. There may well be conflict within the Court's own precedents, as Judge Thapar observes in his opinion, but resolving this conflict is the work of the Supreme Court, not lower courts.

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  1. This isn’t actually a surprising outcome. When the unions were arguing Janus one of their claims was having non-union employees represented in collective bargaining was a taking, because the non-union employees would no longer pay dues. The response was that having exclusive power to bargain for both union members and non-union members provides at least as much value to the unions as the lost dues.

    I’m not a labor expert, but no one is holding a gun to the unions head, they can withdraw from representing the bargaining class whenever they want to. In fact they actually did that at my former workplace at the city of Seattle when the union representing IT workers all the sudden dropped representation of the highest paid segment of city employees weeks before the mayor decided to reorganize the cities dozen or so IT departments into one. What a coincidence! Or maybe a corrupt bargain. The major later had to resign because of numerous child molestation allegations, but the re-org went ahead.

    1. ” they can withdraw from representing the bargaining class whenever they want to.”

      Wouldn’t that be a breach of contract?

  2. Now that I can print again, I’ve been catching up on 6 months case law. One of the cases I was reading this weekend is the English Court of Appeals judgment of R. v. Barton and Booth.

    https://www.bailii.org/ew/cases/EWCA/Crim/2020/575.html

    This case is relevant for the current topic because it adopts the new Supreme Court definition of “dishonesty” into criminal law. Dishonesty is a concept used in the definition of dozens of English criminal statutes. For decades, under a Court of Appeal precedent called R. v. Gosh, this required proof of objective dishonesty (society/the jury thinks this is dishonest) and subjective dishonesty (the defendant thinks this is dishonest).

    Two years ago the Supreme Court took a case called Ivey v. Genting Casinos to overrule the Gosh test. Basically they ditched the second prong. (Sort of.) But the problem was that Ivey was a civil case (about cheating a baccarat – it’s glorious), and that all its dicta about the criminal law Gosh test were obiter.

    So the criminal division of the Court of Appeal had to decide whether to follow the obiter dicta from Ivey or the case that was technically binding precedent, Gosh. So they gathered together all the highest judges in the land, the Lord Chief Justice, the President of the Queen’s Bench Division, the Vice-President of the Criminal Division and two more Lords Justices of Appeal, and decided that the common sense thing to do was to follow Ivey. Par. 104:

    We conclude that where the Supreme Court itself directs that an otherwise binding decision of the Court of Appeal should no longer be followed and proposes an alternative test that it says must be adopted, the Court of Appeal is bound to follow what amounts to a direction from the Supreme Court even though it is strictly obiter. To that limited extent the ordinary rules of precedent (or stare decisis) have been modified. (…) The same approach is necessary here because it forms the foundation for the conclusion that the result is considered by the Supreme Court to be definitive, with the consequence that a further appeal would be a foregone conclusion, and binding on lower courts.

  3. “This strikes me as the proper way for a lower court to handle controlling Supreme Court precedent.”

    This is a pretty wishy-washy statement.

    Is Supreme Court precedent controlling or not?

    1. You’re missing the point. Yes, “Supreme Court precedent” is always controlling. The question is which precedent.

      Let me try to simplify. SCOTUS in case A said “you must do X because Y”. SCOTUS later says in case B that “you must do Z because Y is not right”. Y have been overturned. Does that automatically mean that X been overturned? Intuitively, many people might say yes. The 6th Circuit (and Prof Alder) say no.

      1. I’m curious: Korematsu was only recently explicitly overturned. Does that mean it was controlling for lower courts?

        1. Was it, though? Surely the purported overturning of Korematsu was classic obiter dicta? The Constitution gives the courts power to issue judgments to resolve cases and controversies, but that doesn’t mean that anything else they write in those judgments is also binding law.

  4. I see a pretty big difference between the “meet and confer” practices and contact bargaining. From the decision in MINNESOTA BD. FOR COMMUNITY COLLEGES v. KNIGHT:

    Accordingly, all faculty have been free to communicate to the State Board and to local administrations their views on questions within the coverage of the statutory “meet and confer” provision. Id., at A-50, A-52. They have frequently done so. 3 With the possible exception [465 U.S. 271, 277] of a brief period of adjustment to the new governance structure, during which some administrators were reluctant to communicate informally with faculty, individual faculty members have not been impeded by either MCCFA or college administrators in the communication of their views on policy questions. Id., at A-50. Nor has PELRA ever been construed to impede such communication.

    Contract negotiations do not permit such informal communications.

  5. What is going to get interesting are laws like those passed in Massachusetts and Oregon where the Janus employee must not only work under the union’s contract but pre-pay the union’s lawyer for any arbitration or grievance under it.

    How is this not compelled speech? Having to pay the union to speak for you but prohibiting you from speaking for yourself?

    https://prwatch.org/news/2019/09/13495/massachusetts-law-could-blunt-effect-januss-attack-unions

    1. Alito specifically addressed this in his Janus opinion:

      “Individual nonmembers could be required to pay for that service or could be denied union representation altogether.”

      So apparently even Alito sees no compelled speech issue here.

      1. Denied union representation does not preclude hiring your own lawyer.

  6. “What is going to get interesting are laws like those passed in Massachusetts and Oregon where the Janus employee must not only work under the union’s contract but pre-pay the union’s lawyer for any arbitration or grievance under it.”

    Did you leave out a HUGH qualifier?

    “. . . the Janus employee must not only work under the union’s contract but pre-pay the union’s lawyer for any arbitration or grievance under it”. . . . which IS BROUGHT AT THE NON-MEMBER’S REQUEST.

    From your link, “Under the new law, the ‘exclusive representative (public employee union) may require a non-member to pay for the reasonable costs and fees, including arbitrator fees and related attorney fees for grieving or arbitrating a matter arising under an agreement negotiated pursuant to this section and is brought at the non-member’s request.'”

    1. You are either missing or ignoring my point — why can’t the non-member bring his grievance himself and HIRE HIS OWN LAWYER?

      It’s the same issue as Janus, he is required to pay the union to speak for him, he is not permitted to speak for himself.

  7. This is all solid doctrine, but what is the practical sanction if a lower court judge decides to “anticipate” the Supreme Court and guesses right?

    1. If SCOTUS wanted to be strict about this rule, it could simply summarily vacate such a decision and remand so the lower court would rule based on the decision the lower court thinks is going to be overruled.

  8. This strikes me as ‘creating work for lawyers’ thinking. SCOTUS’s job is to say what the law is. The holding alone isn’t enough, because that just tells you which party prevails, not what the law actually is for everyone else. A decision’s reasoning is fundamental, not secondary, because the reasoning is the part that says what the law is.

    When the reasoning of a SCOTUS case denies and overrules a previous SCOTUS decision’s reasoning, then the previous case can’t be binding anymore, because it’s no longer ‘what the law is’ in any meaningful sense. If this isn’t true, then SCOTUS is never actually deciding what the law is. That unfortunate state of affairs would necessarily imply a government of men, not laws, because no one could reasonably understand how the law applies without the men (and women) of SCOTUS taking up their particular case.

    The ‘conflict or controversy’ clause in article 3 only informs questions of jurisdiction. It shouldn’t inform how we apply the reasoning of court decisions.

    (A corollary of this is that SCOTUS decisions should spend more time explaining the law broadly. Narrow rulings that avoid reaching important questions are an inexcusable abdication of SCOTUS’s core function).

    1. **case or controversy, blah

  9. The Janus decision was based on the premise that, in the context of public-sector employment, collective speech by employees about their terms and conditions of employment was protected by the 1st amendment because their employer was the government. but individual speech by employees was not. Which really makes no sense.

    But the Alito opinion is also clear that it would be unconstitutional for a governmental employer to treat a a non-member of a union worse than it treats union members. Presumably the same would be true in reverse. That’s not very different from exclusive representation in and of itself. And the opinion explicitly accepts that exclusive representation is constitutional in the public sector employment sector.

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