Kagan accuses Supreme Court majority of weaponizing the First Amendment

Supreme Court Justice Elena Kagan in a scathing dissent on Wednesday accused her conservative colleagues of "weaponizing" the First Amendment after the court ruled public-sector unions can’t charge nonmembers a “fair-share” agency fee.

Reading from the bench, Kagan said the majority has chosen the winners by "turning the First Amendment into a sword and using it against workaday economic and regulatory policy."

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“Today is not the first time the court has wielded the First Amendment in such an aggressive way; just yesterday we saw another and it threatens not to be the last.”

In a 5-4 decision on Wednesday, the conservative wing ruled that extracting agency fees from non-consenting public-sector employees violates the First Amendment.

In reaching its decision, the court overturned a 1977 precedent in a case, known as Abood, that allowed public-sector unions to collect fees from nonunion members for nonpolitical activities like collective bargaining without violating their First Amendment right to free speech.

Conservative Justice Samuel Alito said the Abood ruling was poorly reasoned and wrongly decided.

Kagan disagreed, saying the court only decided to overturn the ruling because it wanted to pick the winning side in a policy debate.

“The court today wreaks havoc on entrenched legislative and contractual arrangement,” she said from the bench.

“Twenty-two states have enacted statutes authorizing agency fees. Every one of them will now need to come up with new ways — elaborated in new statutes — to structure relations between government employer and their workers.”

The court ruled on Tuesday that a California law requiring clinics known as "crisis pregnancy centers" to inform women about how to receive low-cost abortions and contraception from the state likely violates the First Amendment.