For years, conservatives have railed against judicial activism and urged judicial restraint, but there is no way to see the U.S. Supreme Court’s decision in Janus v. American Federation as anything other than conservative judicial activism. It is a decision that will have a profound effect in California and that portends even greater changes in labor law in the United States.
The terms “judicial activism” and “judicial restraint” are often invoked, but rarely defined. I have the sense that judicial activism is just a label for the decisions that a person doesn’t like. But some criteria can be agreed to by all: a decision is restrained if it follows precedent and activist if it overrules prior rulings; it is restrained if it defers to the choices of the elected branches of government and activist if it overrules them; and it is restrained if the case is resolved narrowly, but activist if it is decided broadly.
By these criteria, Janus was stunning judicial activism. The court expressly overruled a 41-year-old precedent. In 1977, in Abood v. Detroit Board of Education, the Supreme Court reaffirmed that no one can be forced to join a public employees’ union. But the court held that non-union members can be required to pay the share of the union dues that support the collective bargaining activities of the union, though they do not need to pay the part of the dues that support union political activities.
The court’s decision in Abood was based on a simple and undeniably correct premise: Non-union members benefit greatly from the union in their wages, their working conditions, and the representation they receive. The court explained that they should not be able to be “free riders,” benefiting from collective bargaining without having to pay their “fair share” of the costs.
But in Janus, the court overruled Abood and held that no one can be forced to pay the share of the union dues that support collective bargaining. The court accepted the same argument that it had rejected four decades ago: Forcing employees to pay this share of the union dues is impermissible compelled speech.
The court’s overruling Abood cannot be understood as anything other than the five conservative justices’ hostility to unions. As Justice Elena Kagan declared in her dissenting opinion:
“Rarely if ever has the court overruled a decision – let alone one of this import – with so little regard for the usual principles of [following precedents]. There are no special justifications for reversing Abood. It has proved workable. No recent developments have eroded its underpinnings. And it is deeply entrenched, in both the law and the real world. More than 20 States have statutory schemes built on the decision. Those laws underpin thousands of ongoing contracts involving millions of employees.”
Justice Kagan put it bluntly: “The majority has overruled Abood for no exceptional or special reason, but because it never liked the decision. It has overruled Abood because it wanted to.”
Moreover, Janus is judicial activism in that it usurps the democratic process. Prior to June 27, state legislatures were able to decide whether to require public employees to pay the share of the union dues that support collective bargaining activities. Twenty-two states, including California, made the choice to require this of government employees. Twenty-eight states adopted “right to work” laws that prohibited employers from doing this.
One would expect the conservative justices to want to leave the matter to the states and to the political process. But not here. The court said that the First Amendment makes the law in California and 21 other states unconstitutional.
This is going to require renegotiation of hundreds, perhaps thousands, of public employees’ contracts in California. Unions are going to suffer losses of revenue and of membership. Their ability to protect workers is going to be dramatically lessened.
Nor this is going to be the end of the assault on labor from the Roberts Court. Justice Samuel Alito’s opinion expressed strong hostility to unions. For example, in his majority opinion, Justice Alito indicated that allowing unions to be the exclusive representative of employees in bargaining and handling grievances – the very core of the National Labor Relations Act – is inconsistent with basic First Amendment principles.
Five Republican justices struck a blow against unions, a traditional key supporter of Democratic politicians. They did so in a way that disrupts tens of thousands of contracts. They increased the vulnerability of government employees, many of whom will see a decrease in wages and working conditions as a result of this decision in the years ahead. Whether you agree or disagree with the court, it must be called judicial activism.
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law; firstname.lastname@example.org.