Barnette as the Ultimate Defense to Judicial Review
In my book on the Bill of Rights, I pointed out that the following passage from Justice Jackson’s opinion in West Virginia State Board of Education v. Barnette has become iconic:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
I then pointed out that the Court periodically turns to this quote as a last-ditch justification for an exercise of judicial review that is either on a controversial subject (prayer in schools, abortion, and same-sex marriage, to name three) or undertaken in a controversial manner.
What do we see in today’s opinion in Janus v. AFSCME, which overruled a prior precedent on fees in public sector unions for non-union members? In Footnote 21 of the Court’s opinion, Justice Alito rejects the charge in the dissent that the majority are acting like “black-robed rulers” by saying:
In holding that these laws violate the Constitution, we are simply enforcing the First Amendment as properly understood, “[t]he very purpose of [which] was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638 (1943).