In politics especially, money is power. And this week, the Supreme Court struck a grievous blow to the power of public sector unions.
This is likely to be the precursor to future decisions which weaken or eviscerate the power of organized labor. With Justice Anthony Kennedy’s retirement and a new conservative majority solidly in control of the Supreme Court, future decisions will solidify the power of corporations and big businesses.
There is nothing to indicate that Abood was wrong, that it is unworkable, or that circumstances have changed. All that changed is the composition of the court.
The issue in Janus v. American Federation of State, County, and Municipal Employees, Council 31 (known as Janus v. AFSCME) was whether public unions can require public employees who are not members of the union to pay so-called “agency” or “fair share” fees. Twenty-three states laws require the payment of those fees. The idea is that the non-union public employees benefit from collective bargaining of the union so they should pay their fair share for the union’s representation, even if they aren’t union members.
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For instance, non-union members regularly profit from the union’s representation by obtaining better wages, healthcare, or other working conditions from their government employers. If these non-union public employees do not pay their fair share fees they become “free-riders” – employees who benefit from a union’s collective bargaining activities but do not pay to fund those activities.
Until this week, it had been settled law since a 1977 Supreme Court decision called Abood v. Detroit Board of Education that unions can only ask non-union members to pay for non-political activities like collective bargaining and are prohibited from requiring that they pay for political activities.
But the 5-4 ruling in Janus only paid lip service to the fact that states, public unions, and public employees have relied on Abood for more than 40 years.
Writing for a bare majority of the court, Justice Samuel Alito concluded that fair share fees violate the First Amendment. The plaintiff in this case, Mark Janus, a public employee who is not a member of a union, claimed that the state law requiring that he pay fair share fees to his union violated his speech and associational rights.
The First Amendment protects both our right to speak without the government’s censorship and our right not to speak without the government compelling us to do so. Janus claimed that the state law requiring him to pay fair share fees was tantamount to forcing him to speak for and associate with the union.
Janus, like other non-union public employees, had the option of signing a letter asking for reimbursement of any of his agency fees that were used for political activities, as opposed to collective bargaining activities, which are seen as non-political. Hence instead of placing the burden on unions to get employees to opt into political spending, the burden was on the non-union member to opt out of union political spending. This was obviously advantageous for the unions but not for non-member public employees like Janus.
But the court also ruled that public employees must taking the affirmative step of opt-in to paying fees. The problem of course is that the difference between money spent on political activities versus non-political activities such as collective bargaining is not always a bright line, particularly with respect to spending by public sector unions. And indeed, the Supreme Court majority concluded that even when a public union is engaged in collective bargaining, that activity is inherently political.
Essentially the court weighed the First Amendment burdens faced by non-union public employees who are forced to pay fair share fees against the benefits those employees get from a union’s representation against the problem that unions face from free riders. The court concluded that the First Amendment interests of public employees would prevail.
Therefore, as is always the case when it comes to the court’s blockbuster decisions, the court’s legal conclusion here is inextricably intertwined with questions of policy and politics. The majority’s decision, authored by Alito and joined by the members of the court who were appointed by Republican presidents, is being hailed by Republicans. Not coincidentally Republicans largely wish to hobble the power of unions and compared to Democrats, receive little funding from them.
The dissent, authored by the members of the court who were appointed by Democratic presidents, will be welcomed by Democrats. Democrats, also not coincidentally, largely wish to strengthen unions, and receive far more support from unions than their Republican counterparts.
The court’s decision and the split between the justices who joined or dissented from that decision is not a huge surprise. In 2016, the court previously heard arguments in a separate case that presented the same question as the one at issue in Janus. But by the time it was time to write the decision in that case, Justice Antonin Scalia had died and the court had only four members and deadlocked on the case. Now, after the confirmation of President Donald Trump’s nominee for the Supreme Court, Neil Gorsuch, the court is working at full capacity.
Justice Gorsuch’s decisions this term left little doubt that he will occupy a seat on the far right of the right wing of the court.
This is another case in which President Barack Obama’s administration took one view of the case, the view that would favor unions, and President Trump’s administration took the opposite approach. Whenever the court makes a ruling that overturns its own precedent, as it did in this case with Abood, it is worth asking what changed.
The court is charged with following a doctrine called stare decisis, which is Latin for “to stand by things decided.” The idea is that the law should be as settled and predictable as possible. People should be able to rely on court cases to know what they can and cannot do, and perhaps equally importantly, people should know that the law will not change merely based on the identity of the judges or justices interpreting it.
Stare decisis need not be adhered to in every circumstance. When the court gets something wrong, such as its decision that black people whose ancestors were “imported” into the United States could not become American citizens, it should correct itself. When circumstances change after a decision is made, the court should correct itself.
But there is nothing to indicate that Abood was wrong, that it is unworkable, or that circumstances have changed. As Professor Garrett Epps wrote for The Atlantic, there is simply no factual record in Janus, no evidence or statistics to point to the conclusion that Abood is wrong. What changed is the composition of the court. The Janus decision was not just a sad event for public unions. It was a sad reflection on the integrity of the Supreme Court.
Jessica A. Levinson is a campaign finance and ethics expert at the Loyola Law School in Los Angeles. Reach her at @LevinsonJessica and Jessica.Levinson@lls.edu.