The Supreme Court’s Conservatives Take Their Long-Awaited Shot at Unions

Elections have consequences. Had Hillary Clinton captured the presidency and nominated a Supreme Court justice to fill the vacancy left by Antonin Scalia’s passing in 2016, the court might never have taken up Janus v. AFSCME, Local 31.

But Trump won and nominated another conservative justice in Scalia’s mold. As a result, the court ruled 5-4 on Wednesday in Janus that public-sector unions could no longer collect fees from non-members who are benefiting from the union’s collective-bargaining work. Twenty-two states, the District of Columbia, and Puerto Rico up until now have allowed unions to collect the fees, which are known as fair-share fees or agency fees. The Supreme Court previously approved the practice in the 1977 case Abood v. Detroit Board of Education.

In his majority opinion, Justice Samuel Alito said the fees could not be justified under the First Amendment. “We conclude that this arrangement violates the free speech rights of non-members by compelling them to subsidize private speech on matters of substantial public concern,” he wrote, concluding that Abood was therefore overruled. Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Neil Gorsuch joined his opinion.

Wednesday’s ruling hits American organized labor where it is strongest. About one-third of federal, state, and local government workers are union members, according to the Bureau of Labor Statistics. Those 7.2 million Americans account for just under half of the nation’s organized labor membership. Private-sector employees are far more numerous than their public-sector brethren, but punch under their weight: only about 6 percent of them belong to a union.

Unions traditionally align with the Democratic Party and are a mainstay of its efforts to organize and mobilize voters. As a result, Janus is one of many Roberts Court rulings that may ultimately boost the Republican Party’s electoral prospects. The impact on public-union finances wasn’t missed by one notable commentator: President Donald Trump himself, who celebrated the decision on Twitter only minutes after its release as a “big loss for the coffers of the Democrats!”

Organized-labor leaders sounded a defiant note in response to Wednesday’s ruling. “Unions will always be the most effective force and vehicle to propel working people into the middle class,” Lee Saunders, AFSCME’s national president, said in a statement. “Despite this unprecedented and nefarious political attack—designed to further rig the rules against working people—nothing changes the fact that America needs unions now more than ever.”

Justice Elena Kagan, who wrote a dissent joined by the court’s other three liberal justices, sharply criticized the majority for tossing aside four decades of precedent. “Today, the Court succeeds in its 6-year campaign to reverse Abood,” she wrote. “Its decision will have large-scale consequences. Public employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces.”

Janus is one of the most significant labor-law cases heard by the justices in decades. It also had perhaps the most easily predictable outcome of any case on the court’s docket. The court’s members made clear where they stood on fair-share fees in Friedrichs v. California Teachers’ Association two years ago, which challenged the practice in the California’s teachers’ union. But the path to overturning Abood began even earlier, and as of early 2016, it was clear that everything would hang on the result of the November presidential election.

What are fair-share fees? States use them to solve what’s known as the free-rider problem. Members of a government workplace’s union pay dues to support the union’s operations. Non-member workers also reap the benefits of the union’s efforts to secure better wages and working conditions, but don’t pay dues to support those efforts. Fair-share fees fix the problem by requiring non-members to pay fees that support those collective-bargaining efforts.

The Supreme Court first upheld the fees’ constitutionality in the 1977 case Abood v. Detroit Board of Education. At the time, the court agreed that the fees were acceptable under the First Amendment to avoid free-rider problems and to promote labor peace for public workforces. The court also stipulated that fair-share fees couldn’t be used for “political and ideological purposes unrelated to collective bargaining” that unions also perform on behalf of their members, like supporting candidates for public office. Janus’s fees amounted to roughly 70 percent of a full member’s dues.

To Mark Janus, who works as a child-support specialist for the Illinois Department of Health and Human Services, fair-share fees still amounted to a violation of his First Amendment rights. Janus and the wealthy conservative groups that supported him argued that all public-sector union activities are inherently political in nature. “Abood is offensive to the First Amendment,” Janus said in his brief for the court. “It permits the government to compel employees to subsidize an advocacy group’s political activity: namely, speaking to the government to influence governmental policies.”

The Supreme Court’s conservatives have signaled for years that they thought Abood was unsound. In 2012, the court heard Knox v. SEIU, a case that addressed other fees that unions could charge non-members. In his majority opinion, Alito cast doubt on Abood’s reasoning. “Acceptance of the free-rider argument as a justification for compelling non-members to pay a portion of union dues represents something of an [First Amendment] anomaly—one that we have found to be justified by the interest in furthering ‘labor peace,’” he wrote, quoting an earlier decision by the court. “But it is an anomaly nevertheless.”

Two years later, in the 2014 case Harris v. Quinn, the court considered whether a group of home healthcare workers in Illinois could be compelled to pay fair-share fees. This time, Alito wrote a majority opinion that extensively criticized the 1977 ruling’s logic, calling it “questionable on several grounds.” Nonetheless, he and the other four conservative justices didn’t overturn Abood at that time, because they didn’t think the healthcare workers bringing the case counted as government employees under the Abood decision to begin with.

At the time, Kagan criticized the conservatives’ attacks on a core labor-law ruling. “Readers of today’s decision will know that Abood does not rank on the majority’s top-ten list of favorite precedents—and that the majority could not restrain itself from saying (and saying and saying) so,” she wrote in her dissent from the 2014 decision. “Yet they will also know that the majority could not, even after receiving full-dress briefing and argument, come up with reasons anywhere near sufficient to reverse the decision.”

Two years later during the 2015-2016 term, the conservative justices placed Abood’s neck in the guillotine once more, its demise halted only by a curious twist of fate. Friedrichs v. California Teachers’ Association was virtually identical to Janus, except for the litigants’ state and profession. This time, a group of public school teachers argued that the fees violated their First Amendment rights as a form of compelled speech. The court’s conservatives seemed receptive to that stance during oral arguments. Public unions braced for the blow.

Then, in February 2016, Justice Antonin Scalia died suddenly, throwing the court’s docket into disarray. The other eight justices spent the remainder of the term wrestling with cases where they were evenly divided. (Under the court’s rules, a 4-4 verdict leaves the lower court’s ruling intact but doesn’t set any precedents for future cases. It’s as if the justices hadn’t taken the case at all.) In Friedrichs, the even split sent a clear signal: that all four of the court’s remaining conservative justices would vote to rule fair-share fees unconstitutional. With Scalia’s seat vacant, the fate of fair-share fees—and public unions’ finances—was bound to the results of the 2016 election.

In Wednesday’s ruling, Alito rejected the Abood’s reasoning point by point. The 1977 ruling’s fear of harming “labor peace,” he wrote, “cited no evidence that the pandemonium it imagined would result if agency fees were not allowed, and it is now clear that Abood’s fears were unfounded.” He also concluded that the free-rider problem could be solved by less onerous measures. “Individual non-members could be required to pay for [representation in disciplinary hearings] or could be denied union representation altogether,” he suggested as one example.

Alito noted that public unions that act as a workplace’s exclusive representative enjoy a “privileged position” when negotiating wages and conditions, as well as other special perks. Those advantages “greatly outweigh any extra burden imposed by the duty of providing fair representation for non-members,” he argued. Kagan countered that the majority had disregarded the long-term damage that free riders would have on unions’ health.

Without a fair-share agreement, the class of union non-members spirals upward. Employees (including those who love the union) realize that they can get the same benefits even if they let their memberships expire. And as more and more stop paying dues, those left must take up the financial slack (and anyway, begin to feel like suckers)—so they too quit the union. And when the vicious cycle finally ends, chances are that the union will lack the resources to effectively perform the responsibilities of an exclusive representative—or, in the worst case, to perform them at all.

Some state governments may favor a weaker bargaining partner, Kagan added, but others have valued a union that robustly represents government workers. “Abood respected that state interest; today’s majority fails even to understand it,” she wrote.

Kagan also took aim at a broader trend: “weaponizing” free-speech protections to strike down economic regulations disfavored by conservatives. She cited the court’s ruling 24 hours earlier in National Institute of Family and Life Advocates v. Becerra, where the same justices struck down a California law that required crisis pregnancy centers to post notices about abortion and state medical licensing. Anti-abortion groups decried the notices as unconstitutional compelled speech; the court’s conservatives agreed. In both that case and in Janus, Kagan said Wednesday, the court was “turning the First Amendment into a sword, and using it against workaday economic and regulatory policy” with potentially dire consequences for democratic governance.

“Speech is everywhere—a part of every human activity (employment, health care, securities trading, you name it),” she warned. “For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things.”