Will Justice Thomas Bring His Brand of Originalism to Friedrichs?

Andrew Strom

Andrew Strom is an Associate General Counsel of Service Employees International Union, Local 32BJ in New York, NY.

The Supreme Court has now scheduled the oral argument in Friedrichs for January 11, 2015.  At the conclusion of the argument, court observers will undoubtedly try to predict the outcome based on the questions the Justices ask.  But, one safe bet is that Justice Thomas will remain silent during the argument.  This will allow for several more months of speculation about how Justice Thomas will approach this case.  On the one hand, his political conservatism would lead one to expect him to invalidate fair share fees, but perhaps his originalism will cause him to rule against the petitioners.

Justice Thomas has often written separate concurring or dissenting opinions on Constitutional questions urging the Court to look to the “original meaning” of various provisions.  For instance, in Van Orden v. Perry, a case addressing whether the establishment clause of the First Amendment allowed a display of a monument inscribed with the Ten Commandments on the grounds of a State Capitol, Justice Thomas argued for a “return to the original meaning of the clause.”  Similarly, in U.S. v. Hubbell, a case involving application of the Fifth Amendment’s privilege against self-incrimination, Justice Thomas wrote a concurrence arguing that in a future case the Court should consider the meaning of the term “witness” at the time of the founding.  Justice Thomas has also urged the Court to toss aside what he referred to as “more than 100 years of negative Commerce Clause doctrine” because he has determined that the negative or dormant Commerce Clause “has no basis in the Constitution.”

Perhaps the most relevant precedent is Justice Thomas’s concurrence in Morse v. Frederick, a 2007 case involving the First Amendment rights of students in public schools.  Justice Thomas considered the absence of cases involving student speech in the nineteenth century: “If students in public schools were originally understood as having free-speech rights, one would have expected 19th century public schools to have respected these rights and courts to have enforced them.  They did not.”  Justice Thomas reached the conclusion that “the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools.”

The Solicitor General’s brief in Friedrichs refers to a similar history regarding the rights of public employees.  The Solicitor General notes that “[f]or over a century and a half after the First Amendment was adopted, the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment – including those which restricted the exercise of constitutional rights.”  The Solicitor General also cites to Justice Scalia’s dissent (joined by Justice Kennedy) in Rutan v. Republican Party, where Justice Scalia observed that since “the earliest days of the Republic,” government employment was routinely conditioned upon membership in a particular political party.

Justice Thomas has acknowledged that times have changed since the Constitution was written.  For instance, in Morse, the student speech case, he conceded that “our educational system faces administrative and pedagogical challenges different from those faced by 19th-century schools.  And the idea of treating children as though it were still the 19th century would find little support today.”  But, in his view, even as times change, the Constitution’s meaning cannot be updated.  Thus, in Morse, Justice Thomas had an answer to parents who complained about restrictive speech rules in public schools: “If parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move.”

The public employee speech doctrine is similar to the student speech doctrine.  Both doctrines are largely products of the 1960s.  As late as 1952, the Supreme Court held that a New York law barring members of the Communist Party from teaching in the public schools did not violate the First Amendment because if individuals “do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere.”  But, by 1968, the Court held that there needs to be “a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through employees.”  For student speech, the landmark case came in 1969 when the Court held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  By the time Morse was decided in 2007, this basic premise had been repeatedly reaffirmed and was readily accepted by the eight other justices.  Yet, Justice Thomas rejected it based on his interpretation of the original understanding of the First Amendment.  If Justice Thomas takes the same approach in Friedrichs that he did in Morse, he might similarly conclude that whatever his views are on fair share fees as a matter of public policy, the plaintiffs in Friedrichs do not have a constitutional claim, but instead should seek redress through the political process.

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