Predictions and Outcomes in Constitutional Law

Professor Aaron Tang has a very interesting new paper on SSRN: On Unions, Resistance, and the Supreme Court: What I Learned From Being Wrong After Janus. Here’s the abstract:

"Crippling." "Crushing." "Devastating." That's how progressive commentators described the Supreme Court's 2018, watershed ruling against organized labor in Janus v. AFSCME, Council 31. I know, because I was one of them. Now, six years later, anti-union groups are running a victory lap. One group recently boasted that Janus had caused public sector unions to lose over a million dues-paying members-a staggering figure that would represent more than 20% of their membership rolls.

Drawing on a range of data sources, the Article shows that the percentage of union members who have quit their unions after Janus is closer to 2%-3%, which continues the pre-Janus trendline. Union budgets, too, have been largely stable. Far from the doomsday feared at first by progressives and claimed now by union opponents, the truth is that public sector workers have resisted Janus with surprising success. Six years ago, in other words, I was wrong. And anti-union groups are wrong today.

After identifying these errors, this Article explores three lessons worth learning. The first concerns the role of legal scholarship in social change: labor's resilience after Janus reveals the value of a scholarly approach that attends to the experiences of the people who bear the brunt of judicial decisions. This is a lesson that is deeply personal; the fundamental error in my own, earlier work on Janus was my failure to engage in an inclusive, bottom-up process for thinking about the case and its consequences. A second lesson concerns how labor has maintained its strength. Put simply, union members took matters into their own hands. Teachers, nurses, firefighters, and other public employees held millions of conversations with their coworkers about the value of sticking with their unions. And it worked. For those interested in revitalizing modern labor law, the takeaway is clear: any such effort must begin with labor's greatest strength-organizing. Finally, Janus's aftermath offers insights into progressive debates over the Supreme Court and constitutional theory. Rather than concentrating our responses to the rulings we abhor on the Constitution and the Court that issued them, perhaps we should center the things people are doing to resist-and bypass-the Constitution and Court altogether.

But what I’m interested in here is not just the specific question about the effects of the Supreme Court’s decision in Janus. (Full disclosure, my own piece about Janus (with Eugene Volokh) is here, and it also has some predictions whose accuracy so far is mixed.)

Rather, what’s especially great about this piece is the willingness to candidly revisit some of our predictions about the consequences of a constitutional law decision, and try to figure out what has actually happened. Tang deserves major kudos for doing this.

That said, I think there might be a different or broader lesson here than the ones that Tang draws about organizing and movement lawyering. Instead, I think the lesson is that consequentialist legal scholarship about constitutional law is often not very rigorous, even on its own terms. Every year, I read law professors make broad predictions about the possible consequences of what Supreme Court, but I don’t have a good sense of which ones pan out, or how confident we can be about the actual consequences of even some high profile Supreme Court decisions. Over the next few years, I hope to start trying to spend more time analyzing these issues.

Of course, figuring out the actual consequences of Supreme Court decisions in a rigorous way is hard! But in many cases we don’t even have a good Fermi Estimation — an attempt to roughly estimate the different effects even within an order of magnitude

For instance:

How much of an effect will the Supreme Court’s decision in Bruen have on public safety? There is a fairly robust set of empirical evidence on the relationship between gun laws and suicide/crime. But how many of those gun laws are actually likely to be affected by the specific holding in Bruen about discretionary gun permitting? And if the answer is few, perhaps the real consequences of Bruen will be contained in the downstream doctrinal effects of Bruen on other gun laws, as further confounded by Rahimi and so on. . .

How much of an effect will Loper-Bright have on the regulatory authority of the administrative state? As I wrote at Volokh, after Loper-Bright

[t]he Court agrees that in many cases the best reading of the statute will be that the agency has broad power, or that Congress delegated to the agency a bunch of decisionmaking authority. In those cases, the agency still gets great deference as to the exercise of that authority (within the bounds of the non-delegation doctrine and now the major questions doctrine). . . .

What I would like to see is a decent approximation or Fermi estimate of how many of the most important regulations are justified on the basis of the interpretation of ambiguous language vs. the implementation of broad delegated authority. Today's cases imperil the former, but don't move the needle on the latter. What percentage of cases are in each category?

Another law professor and I briefly tried to sample the Federal Register to get a sense of this, but I’m still surprised by how much we don’t know.

And so on.

Kudos to Aaron for making a much-needed entry in this genre. We need many more.