Public Unions Will Need to Retool
On June 27, 2018, the Supreme Court of the United States issued its decision in Janus v. American Federation of State, County, And Municipal Employees, Council 31, et al. In a 5-4 majority opinion issued by Justice Samuel Alito, the Court held that public unions cannot compel any government employee who does not belong to that union to pay a fee to cover the union’s costs to negotiate a contract that applies to all employees. The 5-4 decision overturned a unanimous 1977 SCOTUS decision, Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), that permitted “fair share” or “agency” fees to be used for non-political purposes. Many hailed Janus as a major victory for the First Amendment. Justice Elena Kagan issued a fiery dissent, warning that the ruling could disrupt “thousands of ongoing contracts involving millions of employees.”
Alito concluded his opinion by overturning Abood, stating:
"Abood was wrongly decided and is now overruled."
The basis for the decision was that the "fair share" fees that "subsidize a union" "violates teh free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern." What is interesting is that the Court did not rely on freedom of association in its analysis, but turned to the First Amendment. (The First Amendment has become a much used basis of the Roberts Court for justifying or invalidating a variety of issues.)
The Court noted that stare decisis is important, but in this case, "Fundamental free speech rights are at stake." The opinion then discusses Abood in great detail and why it is flawed when reviewing First Amendment rights of the non-union members and compelled speech they must endure. Alito next dismisses the arguments of the "free rider," i.e,, that non-members get the benefit of the collective bargaining agreement and negotiations and representations. (Some have argued that individually, they can get a better deal each and every time. This article is not the avenue to discuss that, but one can point to public employees in Chicago, some union and some not, that have very different benefits and wages.) The Court cited a decision, Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 202-203 (1944), that held that a "union may not negotiate a collective-bargaining agreement that discriminates against non-members."
Justice Sonia Sotomayor issued a one paragraph dissent, agreeing with Justice Kagan's dissent "that Sorrell- in the way it has been read by this Court- has allowed courts to 'wiel[d] the First Amendment in...an aggressive way' just as the majority does today."
Justice Kagan issued a long dissent, beginning with the balance that Abood had struck in fees for negotiations versus political purposes. She noted, "Today, the Court succeeds in is 6-year campaign to reverse Abood." She notes that more than 20 States have frameworks in place based on the decision, and also noted that in a 2009 case, the Court unanimously "called the Abood rule 'a general First Amendment Principle." Locke v. Karass, 555 U.S. 207, 213 (2009). She also discounted any argument that Abood was unwieldy or confusing or hard to administer, noting, "In the 40 years since Abood, this Court has had to resolve only a handful of cases raising questions about the distinction." Kagan strongly ended her dissent, stating in part:
There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this Nation’s law— and in its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy…. Abood’s legal underpinnings have not eroded over time: Abood is now, as it was when issued, consistent with this Court’s First Amendment law. Abood provided a workable standard for courts to apply. And Abood has generated enormous reliance interests. 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. Because, that is, it wanted to pick the winning side in what should be—and until now, has been—an energetic policy debate…. Americans have debated the pros and cons for many decades—in large part, by deciding whether to use fair-share arrangements. Yesterday, 22 States were on one side, 28 on the other (ignoring a couple of inbetweeners). Today, that healthy—that democratic— debate ends. The majority has adjudged who should prevail. Indeed, the majority is bursting with pride over what it has accomplished: Now those 22 States, it crows, “can follow the model of the federal government and 28 other States.” Ante, at 47, n. 27. And maybe most alarming, the majority has chosen the winners by turning the First Amendment into a sword, and using it against workaday economic and regulatory policy. Today is not the first time the Court has wielded the First Amendment in such an aggressive way…. And it threatens not to be the last. Speech is everywhere—a part of every human activity (employment, health care, securities trading, you name it). 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. It was meant not to undermine but to protect democratic governance—including over the role of public-sector unions.
The debate will play out in Illinois and the other states with such frameworks. We will see if Alito or Kagan was right in their views and how this will play out. In any case, it is likely to have a large impact on the number of members of public unions in those states.