The majority claims it is not making a special and unjustified exception. It offers two main reasons for declining to apply here our usual deferential approach, as exemplified in Pickering, to the regulation of public employee speech. First, the majority says, this case involves a âblanketâ policy rather than an individualized employment decision, so Pickering is a âpainful fit.â Ante, at 23. Second, the majority asserts, the regulation here involves compelling rather than restricting speech, so the pain gets sharper still. See ante, at 24â25. And finally, the majority claims that even under the solicitous Pickering standard, the government should lose, because the speech here involves a matter of public concern and the governmentâs managerial interests do not justify its regulation. See ante, at 27â31. The majority goes wrong at every turn.First, this Court has applied the same basic approach whether a public employee challenges a general policy or an individualized decision. Even the majority must con- cede that âwe have sometimes looked to Pickering in considering general rules that affect broad categories of employees.â Ante, at 23. In fact, the majority cannot come up with any case in which we have not done so. All it can muster is one case in which while applying the Pickering test to a broad ruleâbarring any federal employee from accepting any payment for any speech or article on any topicâthe Court noted that the policyâs breadth would count against the government at the testâs second step. See United States v. Treasury Employees, 513 U. S. 454 (1995). Which is completely predictable. The inquiry at that stage, after all, is whether the government has an employment-related interest in going however far it has goneâand in Treasury Employees, the government had indeed gone far. (The Court ultimately struck down the rule because it applied to speech in which the government had no identifiable managerial interest. See id., at 470, 477.) Nothing in Treasury Employees suggests that the Court defers only to ad hoc actions, and not to general rules, about public employee speech. That would be a perverse regime, given the greater regularity of rulemaking and the lesser danger of its abuse. So I would wager a small fortune that the next time a general rule governing public employee speech comes before us, we will dust off Pickering.
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Consider an analogy, not involving union fees: Suppose a government entity disciplines a group of (non-unionized) employees for agitating for a better health plan at various inopportune times and places. The better health plan will of course drive up public spending; so according to the majorityâs analysis, the employeesâ speech satisfies Pickeringâs âpublic concernâ test. Or similarly, suppose a public employer penalizes a group of (non-unionized) teachers who protest merit pay in the school cafeteria. Once again, the majorityâs logic runs, the speech is of âpublic concern,âso the employees have a plausible First Amendment claim. (And indeed, the majority appears to concede as much, by asserting that the results in these hypotheticals should turn on various âfactual detail(s)â relevant to the interest balancing that occurs at the Pickering testâs second step. Ante, at 32, n. 23.) But in fact, this Court has always understood such cases to end at Pickeringâs first step: If an employeeâs speech is about, in, and directed to the work- place, she has no âpossibility of a First Amendment claim.â Garcetti, 547 U. S., at 418; see supra, at 11. So take your pick. Either the majority is exposing government entities across the country to increased First Amendment litigation and liabilityâand thus preventing them from regulating their workforces as private employers could. Or else, when actual cases of this kind come around, we will discover that todayâs majority has crafted a âunions onlyâ carve-out to our employee-speech law.
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So all that the majority has left is Knox and Harris. See ante, at 43. Dicta in those recent decisions indeed began the assault on Abood that has culminated today. But neither actually addressed the extent to which a public employer may regulate its own employeesâ speech. Relying on them is boot-strappingâand mocking stare decisis. Donât like a decision? Just throw some gratuitous criticisms into a couple of opinions and a few years later point to them as âspecial justifications.â
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There is no sugarcoating todayâs opinion. The majority overthrows a decision entrenched in this Nationâs lawâ and in its economic lifeâfor over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.
Departures from stare decisis are supposed to be âexceptional action(s)â demanding âspecial justification,â Rum-sey, 467 U. S., at 212âbut the majority offers nothing like that here. In contrast to the vigor of its attack on Abood, the majorityâs discussion of stare decisis barely limps to the finish line. And no wonder: The standard factors this Court considers when deciding to overrule a decision all cut one way. Aboodâs legal underpinnings have not eroded over time: Abood is now, as it was when issued, consistent with this Courtâs First Amendment law. Abood provided a workable standard for courts to apply. And Abood has generated enormous reliance interests. The majority has overruled Abood for no exceptional or special reason, but because it never liked the decision. It has overruled Abood because it wanted to.
Because, that is, it wanted to pick the winning side in what should beâand until now, has beenâan energetic policy debate. Some state and local governments (and the constituents they serve) think that stable unions promote healthy labor relations and thereby improve the provision of services to the public. Other state and local governments (and their constituents) think, to the contrary, that strong unions impose excessive costs and impair those services. Americans have debated the pros and cons for many decadesâin large part, by deciding whether to use fair-share arrangements. Yesterday, 22 States were on one side, 28 on the other (ignoring a couple of in-betweeners). Today, that healthyâthat democraticâ debate ends. The majority has adjudged who should prevail. Indeed, the majority is bursting with pride over what it has accomplished: Now those 22 States, it crows, âcan follow the model of the federal government and 28 other States.â Ante, at 47, n. 27. And maybe most alarming, the majority has chosen the winners by turning the First Amendment into a sword, and using it against workaday economic and regulatory policy.