Getting Over the New Deal with Janus

Getting Over the New Deal with Janus

Last year's decision in Janus v. AFSCME (2018) is properly seen as a landmark ruling in the area of compelled speech (e.g., here and here), but it is more than that. By overruling Abood v. Detroit Board of Education (1977), the Supreme Court in Janus acknowledged that its extension of private-sector labor law precedents concerning union-security clauses to the public sector was erroneous. I have previously written about “the road to Abood” (here and here), and explained why the Court's poorly-reasoned decisions under the National Labor Relations Act (NLRA) should not govern arrangements involving government employees. Justice Alito, who authored Janus and the decisions leading up to it, scathingly dissected the Court's NLRA precedents, most of which were issued during the heyday of the Warren Court.

By exposing the shoddy doctrinal foundation of Abood, Alito was able to clean the Augean stables of the Court's compelled speech jurisprudence, but the Court simultaneously signaled that its decades-old love affair with the NLRA—a New Deal-era statute that codified class struggle—is finally over. In hindsight, we can see that Abood was the high-water mark of the Court's dubious infatuation with the NLRA and its Marxian notions of economic warfare between capital and labor. After 1977, the spark of magic that once animated the Court's approach to labor law seemed to fade. The romance soured. The bloom came off the rose. What happened? How did the Court fall out of love with one of the New Deal's most iconic statutes, the NLRA?

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