Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, February 26, 2018

Oral arguments (and more) in the Janus case

There's been a fair bit of commentary -- here at MOJ and elsewhere in the Catholic interwebs -- about the Janus case, which presents the question (as I'd put it) whether the Constitution permits governments to require public employees to support public-employee unions and their activism as a condition of public employment.  Here is the transcript from today's oral argument.  (Those MOJ readers who went to law school will have flashbacks, during the questions of certain justices, to those awkward moments in law-school moot-court events when one was expected to respectfully answer questions from "judges" who hadn't read the record, the briefs, or the relevant precedents.)  

MOJ readers might also be interested in this exchange between Distinctly Catholic's Michael Sean Winters and Bench Memos's Ed Whelan.  Whelan has, in my view, the better of the argument.  Particularly wrongheaded is MSW's embrace and praise of Bishop David Zubik's entirely wrong argument:

The man who brought the lawsuit took a union job, agreed to the union terms, and then sued on free speech grounds because he objected to the union's political positions. It's similar to someone who has taken a job in the Catholic Church arguing that he should be allowed to keep his job while also publicly advocating for abortion. He knew the terms of employment when he accepted them.

This is (all due respect) just wrong.  The constitutional question is whether the First Amendment permits the government to make endorsing the "union's political positions" a condition of employment; it's not about what churches may or may not make conditions of church employment.  This is simply sophistry.  (And, no, it's not "libertarian" to point out "sophistry.")



Garnett, Rick | Permalink