This week the Supreme Court had its first major 4-4 deadlock in Friedrichs v. California Teachers Association (the compelled union dues case). Most observers think that, had Justice Scalia still been on the Court, the outcome would have been 5-4 against the unions. So conservatives mourn a lost opportunity.
But originalists shouldn't. The key question presented was:
whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.
I'm not aware of any substantial originalist argument against this requirement. On its face, the First Amendment preserves an individual's freedom to speak (and, I agree, by extension, not to speak), but it does not say anything about compelling people to give financial support to other speakers. Providing money is not speaking. Especially when it is compelled, it has no communicative element. Further, I doubt there's any founding-era support for the idea that compelled dues (or other compelled payments) are unconstitutional restrictions on speech. The constitutionality of compelling payments to the government, which are then used for government speech, is not seriously doubted. The distinction between compelling payments to private speakers and compelling payments to government speakers rests principally on nonoriginalist precedent. Originalists should not be enthusiastic about extending that precedent.
Posted at 8:01 AM