“What is it, in your mind,” Justice Breyer asked Mr. Carvin, “that you can say from the point of view of this court’s role in this society in that if — of course, we can overrule a compromise that was worked out over 40 years and has lasted reasonably well …” The justice ruminated for a moment on his own practice of filing dissenting opinions, and then returned to his point: “You start overruling things, what happens to the country thinking of us as a kind of stability in a world that is tough because it changes a lot?”
But as Greenhouse surely knows, the Court overrules a case now and then. And I doubt she is so troubled in different circumstances. I don't remember that she expressed any concern when
Lawrence v. Texas (with Justice Breyer in the majority) overruled
Bowers v. Hardwick to find homosexual conduct protected by the Fourteenth Amendment. I would be surprised if she thought
Mapp v. Ohio or
West Coast Hotel v. Parrish were wrongly decided because they overruled prior cases (
Wolf v. Colorado and
Adkins v. Children's Hospital, respectively). If she really thinks any overruling amounts to a "putsch" she should be clear about the implications of that view. And if she thinks there's a difference between
Friedrichs and the other cases (other than that she liked the outcome in those other cases), she should make the argument.
She concludes:
So what we have here are the majority’s policy preferences conveniently clad in First Amendment armor. But even the best armor is vulnerable, and as the court strides recklessly into a danger zone, I’m left with Justice Breyer’s question: What’s the country to think?
I suppose the country is to think that when there is a significant ideological shift at the Supreme Court, a small number of past holdings, about which the new majority feels strongly, may be vulnerable — just as happened in Lawrence, Mapp, West Coast Hotel, and others. Indeed, anyone who pays any attention to the Court no doubt thinks that already. The game of screaming "irresponsible" when one's favored cases are overruled, but not otherwise, is a cheap rhetorical trick and no more.
(To be fair, much the same could be said for Justice Scalia, whose dissent in Lawrence complained about the majority overruling Bowers. The short of it is that cases get overruled sometimes.).
I would criticize the claim in
Friedrichs in a different way. The argument for the plaintiffs is that the mandatory union fee abridges their freedom of speech, because the union spends the money on (among other things) speech the plaintiffs may not agree with. Are there grounds for thinking that such a mandatory fee is inconsistent with the original meaning of the First Amendment (as incorporated by the Fourteenth)? I have not heard them. Nothing in their
brief makes any specific arguments about the Amendments' original meaning as applied to union dues or anything generally analogous. (They rely mostly on compelled speech cases in different contexts, which themselves may or may not be consistent with original meaning). Perhaps it was well accepted in 1788 and 1868 that this sort of arrangement would be unconstitutional, though I doubt it.
But Greenhouse doesn't believe in original meaning so she can't make this argument. And without the anchor of original meaning, the Court follows its preferences. Trying to tie the current Court to prior decisions isn't going to work because no one (Greenhouse included, I am quite confident) thinks all prior cases should be inviolable. They only think ones whose outcomes they like are inviolable. And that's what the Justices think too.