When the Supreme Court heard oral argument earlier this week in Janus v. AFSCME, Council 31, an important case about public sector unions, there were a lot of empirical questions—but not a lot of answers.  The reason for that was simple: those opposed to the unions didn’t bother to develop a record in the lower court that would answer those questions.  All of the Justices should be concerned about that, but there’s one in particular who should be especially concerned based on comments he made just a week ago: Chief Justice John Roberts.

In Janus, the Supreme Court is considering the constitutionality of public sector agency fair share fees, the fees that unions require all employees to pay to help cover the costs of collective bargaining that benefits all employees, whether they are members of the union or not.  Over forty years ago, in a case called Abood v. Detroit Board of Education,the Supreme Court upheld the constitutionality of these fees, recognizing that its “province [was] not to judge the wisdom of [the state’s] decision to” allow such fees and that “important government interests” justified the “impingement upon associational freedom created by the agency shop [arrangement].” 

Now, forty years later, the issue is back at the Court because the Court’s conservatives encouraged litigants to bring it there—in one case from 2014, Justice Alito’s criticism of the opinion was so pronounced that Justice Kagan, writing in dissent, noted that “[r]eaders of today’s decision will know that Abood does not rank on the majority’s top-ten list of favorite precedents—and that the majority could not restrain itself from saying (and saying and saying) so.” 

The Court first considered a frontal challenge to Abood in 2015, but Justice Scalia passed away before the Court issued its decision, and the Court split 4-4.  Now the issue is back, and as Professor Garrett Epps has noted, the oral argument this week was notable for the number of questions—specifically, empirical questions—that went unanswered.  And as he explains, that’s because there is “no record in this case.”  There was never any development in the trial court of the answers to the sorts of factual questions that might be relevant in deciding the important legal question at issue.

As I’ve written about in the Duke Law Journal, courts must often rely on what are called “legislative facts” to resolve difficult legal questions: “Legislative facts can take various forms; they might help the court understand the history of a given practice, . . . identify current realities, . . . or make predictions about the potential effects of legal rules that the court is considering adopting. . . . Although there will be many cases in which legislative facts play no role at all, . . . when such facts do play a role, they are often critical.” 

In our adversarial system of justice “trial courts are supposed to resolve cases based on the factual records presented by the parties,” yet that doesn’t always happen with respect to legislative facts.  Instead, appellate courts sometimes look outside the record when it comes to legislative facts, and that can be a real problem.  As I noted in the article, “there is a real danger when judges, inexperienced in making empirical judgments and unrestrained in how they do so, are forced to make factual determinations that are highly contestable and ideologically laden without any guidelines.” 

In their briefs to the Court, the lawyers for the parties supporting the constitutionality of agency fair share fees noted—repeatedly—how many factual questions in this case remained unanswered given the absence of a record developed below.  At one point, they note that the view of those challenging fair share fees “rests on mistaken factual assumptions, in a case with no factual record.”  Elsewhere, they point out that “[n]othing on this record supports [the challengers’ view that agency fees are not necessary for exclusive representation].”  At still other points, they note that “[f]urther fact-finding would be necessary here given the lack of an evidentiary record” and that another issue “should be addressed in an appropriate case on a fully developed factual record.”  The other brief filed by a party to the case in support of the constitutionality of fair share fees noted, among other things, that claims made by the challengers were “false—and unsupported by an evidentiary record,” and that the “Court should be especially cautious discarding a 40-year-old precedent based on factual assumptions without an evidentiary record.”

At oral argument in a case about the Fifth Amendment’s privilege against self-incrimination just last week, Chief Justice Roberts spoke at length about the important role played by the record developed by the lower courts: “There is a reason we [confine] things to what’s in the record, including how do we know what this is if it is [not] in the record. . . . How we do know it’s been adequately – had a chance for people to object to it and all that?”  He went on: “[A]s far as I’m concerned coming in and saying I want to know about this thing that’s not in the record is no different from somebody else coming off of the street and saying: Hey, wait a minute, I know what happened in this case.”  Ultimately, he told counsel that he would “discount the answers” to a question “because it is not something that’s in the record.”

In that Fifth Amendment case, the Chief was focused not on legislative facts, but adjudicative facts—facts specific to that particular case.  But the concerns he highlights are nonetheless relevant to legislative facts.  If there are legislative facts that are underlying the court’s decision in a case, there is every reason to think that those facts should be just as tested as adjudicative facts to ensure that they are correct.  In the absence of such testing, it becomes too easy for judges to, as I’ve written previously, “rest their decisions on assumptions—often unfounded assumptions—about the world around them and the way it operates.”

In the argument in Janus, one of the attorneys arguing for the constitutionality of agency fair share fees noted that “when these kinds of obligations of financial support become voluntary, union membership goes down, union density rates go down, union resources go down. . . .  [W]hen unions are deprived of agency fees, they tend to become more militant, more confrontational, they go out in search of short-term gains that they can bring back to their members and say stick with us.”  In response, the Chief Justice said, “Well, the argument on the other side, of course, is that the need to attract voluntary payments will make the unions more efficient, more effective, more attractive to a broader group of their employees.  What's wrong with that?”

In asking that question, the Chief Justice was asking an empirical question—he wanted to know how unions and employees respond in the real world if unions cannot charge fair share fees.  The answer to that question is incredibly important to the case, which is why how the Court answers it is also so important.  If a record had been developed below, both parties could have offered real-world evidence and experts that could have been tested by the other side.  But that didn’t happen.  And as a result, there is a real danger that the Justices will rest their legal conclusion in this critically important case not on tested facts, but on untested assumptions. 

Untested assumptions are no basis for overruling a 40-year-old precedent and disrupting carefully calibrated public-sector labor regimes around the country.  If the Justices can’t find the empirical answers they need to resolve this case in the record before them, there’s a simple solution: send it back to the district court.

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