In 5-4 ‘Janus’ vote, US Supreme Court strikes blow against public sector unions

From the Minneapolis Labor Review, July 27, 2018

By Steve Share, Minneapolis Labor Review editor

MINNEAPOLIS —Voting 5-4, the U.S. Supreme Court last month upended 41 years of legal precedent and overturned the Court’s unanimous 1977 decision which had allowed public sector unions to collect “fair share” or “agency” fees from non-members.

The decision in Janus v. AFSCME Council 31, which was released June 27, ruled in favor of State of Illinois employee Mark Janus’s objection to paying any fees to the union which represented him and bargained for his wages and benefits.

Janus’s case, bankrolled by right-wing foundations funded by anti-union billionaires, claimed that all “non-member fee deductions are coerced political speech” and that “the First Amendment forbids coercing any money from the non-members.”

The case was carefully designed to overturn the Supreme Court’s 1977 decision, Abood v. Detroit Board of Education. In Abood, the Court ruled unanimously that the interests of both government employers and public employee unions for labor peace were served by collective bargaining. The Court, however, sensitive to potential First Amendment concerns, in Abood upheld “fair share” fees as a way for workers who objected to joining the union to pay for the union’s collective bargaining activities, but not its political efforts.

The majority opinion overturning Abood was written by Justice Samuel Alito, who has served on the high court since 2006 and was nominated by President George W. Bush. In other opinions in recent years, Alito had raised concerns about Abood, laying the groundwork for future challenges. President Trump’s nominee, Justice Neil Gorsuch, sided with the 5-4 majority.

Justice Elena Kagan, writing the dissenting opinion, vehemently objected to the process and outcome of Janus. “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… Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways.”

Kagan continued: “Rarely if ever has the Court overruled a decision — let alone one of this import — with so little regard for the usual principles of stare decisis [previous decisions]. 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… Those laws underpin thousands of contracts involving millions of employees… [J]udicial disruption does not get any greater than what the Court does today.”

“There is no sugarcoating today’s opinion,” Kagan wrote. “The majority overthrows a decision entrenched in this Nation’s law — and its economic life — for over 40 years… 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… [A]lmost 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.”

State of Illinois employee Mark Janus paid $44.58 monthly in fair share fees to AFSCME, about $535 per year. What next for him? The Chicago Sun-Times reported July 20 that “he’s quitting his job for a position with the conservative think tank that helped bankroll his case.”