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Supreme Court Ends Compulsory Public Sector Union Dues, 5-4

Janus case (Alex Wong / Getty)
Alex Wong / Getty

The U.S. Supreme Court handed down its decision in Janus v. AFSCME on Wednesday, ruling 5-4 that public sector unions could no longer compel non-members to pay dues because it violated their First Amendment rights.

The decision is a major victory for free speech and for workers’ rights — and a major setback for public sector unions, who have emerged in recent decades as a powerful left-wing political force.

Mark Janus, the Illinois state employee who challenged compulsory dues, had been required to pay about $535 per year, even though he opposed his union’s positions on many issues in its collective bargaining.

Under the precedent established in Abood v. Detroit Board of Education (1977), public sector unions could not force non-members to contribute to their political activities, but could compel them to pay dues toward collective bargaining.

That precedent looked shaky, however, as workers sued unions, arguing that many of the unions’ collective bargaining activities were inherently political. Abood was expected to be overturned in Friedrichs v. California Teachers Association (2016), but the death of Justice Antonin Scalia left the court deadlocked, 4-4.

But President Donald Trump’s victory later that year paved the way for the appointment of Justice Neil Gorsuch — after Senate Majority Leader Mitch McConnell (R-KY) had stalled the confirmation of Obama nominee Merrick Garland — and the Court found another chance to overturn Abood.

Justice Samuel Alito, writing for the Court’s conservative majority, wrote (original emphasis):

Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned.

Compelling a person to subsidize the speech of other private speakers raises similar First Amendment con­cerns.

Whatever may have been the case 41 years ago when Abood was handed down, it is now unde­ niable that “labor peace” can readily be achieved “through means significantly less restrictive of associational free­ doms” than the assessment of agency fees.

Petitioner [Mark Janus] strenuously objects to this free-rider label. He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage.

Unions can also speak out in collective bargaining on controversial subjects such as climate change, the Confederacy,sexual orientation and gender identity, evolu­tion, and minority religions. These are sensitive politi­cal topics, and they are undoubtedly matters of profound “‘value and concern to the public.’”

Abood is also an “anomaly” in our First Amendment jurisprudence … It is an odd feature of our First Amend­ment cases that political patronage has been deemed largely unconstitutional, while forced subsidization of union speech (which has no such pedigree) has been largely permitted.

We recognize that the loss of payments from nonmem­ bers may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members. But we must weigh these disadvantages against the consider­ able windfall that unions have received under Abood for the past 41 years. It is hard to estimate how many bil­ lions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely.

For these reasons, States and public-sector unions may no longer extract agency fees from nonconsenting employ­ ees.

Justice Elena Kagan led the dissent (with Justice Sonia Sotomayor writing a smaller dissent of her own). Kagan argued (original emphasis):

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. There are no special justifications for reversing Abood. It has proved workable.

The key point about Abood is that it fit naturally with this Court’s consistent teaching about the permissibility of regulating public employees’ speech. The Court allows a government entity to regulate that expression in aid of managing its workforce to effectively provide public services. That is just what a government aims to do when it enforces a fair-share agreement. And so, the key point about today’s decision is that it creates an unjustified hole in the law, applicable to union fees alone.

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. … 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.

In a press release, plaintiff Mark Janus said: “I’m thrilled that the Supreme Court has restored not only my First Amendment rights, but the rights of millions of other government workers across the country. So many of us have been forced to pay for political speech and policy positions with which we disagree, just so we can keep our jobs.

He added: “This is a victory for all of us. The right to say ‘no’ to a union is just as important as the right to say ‘yes.’ Finally our rights have been restored.”

Mark Mix, president of the National Right to Work Legal Defense Foundation, said: “Today’s decision is a landmark victory for rights of public-sector employees coast-to-coast that will free millions of teachers, police officers, firefighters and other public employees from mandatory union payments.”

He added that “there remains much work to do to both enforce and expand upon this historic victory over coercive unionism.”

The American Federation of State, County and Municipal Employees (AFCME), which was on the losing end of the decision, tweeted that the Court had sided with “billionaires.”

Democrats also railed against the decision, and the “stolen” Supreme Court seat.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. He is also the co-author of How Trump Won: The Inside Story of a Revolution, which is available from Regnery. Follow him on Twitter at @joelpollak.

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