SCOTUS Rules in Janus v. AFSCME That Public Sector Unions Cannot Make Non-Members Pay Dues
Forcing them to pay “violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”
The Supreme Court handed another victory to free speech with Janus vs. AFSCME (American Federation of State, County, and Municipal Employees). In a 5-4 decision, the justices determined government unions cannot require non-members to pay union dues.
A quick history of the case: Mark Janus worked as a child support specialist for the Illinois Department of Healthcare and Family Services. He was not a member of the union but was required to pay “fair share” dues. The state of Illinois took $50 from his paycheck to cover the cost of the union dues.
Janus argued that these dues “violate his free speech rights because he disagrees with many positions taken by AFSCME and that everything the public employee union does is inherently political.”
Justice Samuel Alito wrote “that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”
#SCOTUS holds requiring nonmembers of public-sector unions to pay fees to cover collective-bargaining activities violates the First Amendment, overruling longstanding precedent
— SCOTUSblog (@SCOTUSblog) June 27, 2018
That precedent came from a 1977 SCOTUS decision in Abood v. Detroit Board of Education that ruled the unions could charge fair share dues, but they may not use that money for political reasons. This court struck that down:
Abood was poorly reasoned, and those arguing for retaining it have recast its reasoning, which further undermines its stare decisis effect, e.g., Citizens United v. Federal Election Comm’n, 558 U. S. 310, 363. Abood relied on Railway Employes v. Hanson, 351 U. S. 225, and Machinists v. Street, 367 U. S. 740, both of which involved private-sector collective-bargaining agreements where the government merely authorized agency fees. Abood did not appreciate the very different First Amendment question that arises when a State requires its employees to pay agency fees. Abood also judged the constitutionality of public-sector agency fees using Hanson’s deferential standard, which is inappropriate in deciding free speech issues. Nor did Abood take into account the difference between the effects of agency fees in public- and private-sector collective bargaining, anticipate administrative problems with classifying union expenses as chargeable or nonchargeable, foresee practical problems faced by nonmembers wishing to challenge those decisions, or understand the inherently political nature of public-sector bargaining. Pp. 35–38.
In the decision, the Court reiterated the importance of protecting free speech, saying SCOTUS has “held time and again that freedom of speech ‘includes both the right to speak freely and the right to refrain from speaking at all.'” From the decision:
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. Suppose, for example, that the
State of Illinois required all residents to sign a document expressing support for a particular set of positions on
controversial public issues—say, the platform of one of the major political parties. No one, we trust, would seriously argue that the First Amendment permits this.Perhaps because such compulsion so plainly violates the Constitution, most of our free speech cases have involved
restrictions on what can be said, rather than laws compelling speech. But measures compelling speech are at least
as threatening.
Alito also wrote that freedom of speech “is essential to our democratic form of government” and when “the Federal Government or a State prevents individuals saying what they think on important matters or compels them to voice ideas with which they disagree, it undermines these ends.” He continued:
When speech is compelled, however, additional damage is done. In that situation, individuals are coerced into
betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is
always demeaning, and for this reason, one of our landmark free speech cases said that a law commanding “involuntary
affirmation” of objected-to beliefs would require “even more immediate and urgent grounds” than a law demanding silence. Barnette, supra, at 633; see also Riley, supra, at 796–797 (rejecting “deferential test” for compelled speech claims).
Reactions
The Liberty Justice Center sent out an enthusiastic response from Janus on the decision:
“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. 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.”
Janus’s lawyer Jacob Huebert, who is with LJC, shared his joy:
“This is the biggest victory for workers’ rights in a generation. The First Amendment guarantees each of us, as individuals, the right to choose which groups we will and won’t support with our money. Today the Supreme Court recognized that no one should be forced to give up that right just to be allowed to work in government. The Court recognized that unions have the right to organize and to advocate for the policies they believe in – but they don’t have a special right to force people to pay for their lobbying. They have to play by the same rules as everyone else.”
Just in: Big win for workers and taxpayers! Supreme Court blocks unions from forcing government workers to pay union dues. Here’s why it matters:#Janus #SCOTUS pic.twitter.com/PGrjtvSvKQ
— John Stossel (@JohnStossel) June 27, 2018
Derek sums it up perfectly:
Nothing scares the hell out of unions like the idea of voluntary membership in their organizations. Tells you pretty much all you need to know about what they think of the services they provide. #Janus
— Derek Hunter (@derekahunter) June 27, 2018
Apparently, Sen. Patty Murray (D-WA) hasn’t read the case because this has nothing to do with corporate anything, but public sector unions:
Today’s #SCOTUS decision is a loss for working people and yet another win for corporate special interests that have spent decades funding political campaigns and lawsuits designed to chip away at workers’ rights.
— Senator Patty Murray (@PattyMurray) June 27, 2018
She’s not the only one:
#SCOTUS just ruled against working people and unions in #JanusvsAFSCME — a case funded by billionaires. Corporate interests might try to shut us up and break us apart, but let me be clear: we’re not going anywhere. pic.twitter.com/pMH2S4CWts
— Elizabeth Warren (@elizabethforma) June 27, 2018
Special interests have been rigging the system against the working class for far too long. #SCOTUS just came down on the wrong side of history in #Janus. We will come together to fight back and work to strengthen unions and raise wages. @AFSCME@NEAToday@AFTunion@SEIU pic.twitter.com/7oxKul0VGV
— Rep. Ro Khanna (@RepRoKhanna) June 27, 2018
This #JANUS decision is yet another assault on working people in this country and their constitutional right to collective action. I stand with the 17.3 million public sector employees including, teachers, firefighters and police officers whose rights have been trampled on.
— Marcy Kaptur (@RepMarcyKaptur) June 27, 2018
Today’s #SCOTUS ruling on #Janus is a direct attack on collective bargaining, better wages, safer working conditions, secure retirement, and affordable health care for our public employees plain and simple. Read my full statement below: pic.twitter.com/uZ88e53Mt4
— Dina Titus (@repdinatitus) June 27, 2018
Full decision here:
Janus v. American Federation of State, County, And Municipal Employees, Council 31, Et Al. by Legal Insurrection on Scribd
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Comments
Liberal justices siding with the ideological pay masters?
Curious, isn’t it? You’d think lifetime tenure might generate at least a little independent thought in a liberal Supreme Court justice. But they seem incapable of it.
let’s be honest, the SCOTUS justices are nominated and appointed for their biased views – why would you expect ANY of them to ACTUALLY evaluate arguments in the light of Constitutional law.
the real challenge of Conscience is provided by the ‘swing’ Justices. You don’t see Liberals vote against their preconceptions.
It may take a while to become evident, but this is the greatest shift in Labor Union law since the Taft-Hartley Act of 1947 allowed Right to Work States.
And this is going to destroy the Dem party’s financial base. From now on, they will be completely reliant on the whims of West Coast billionaires.
Having West Coast billionaires (LCB’s) “own” the Democrat party cannot be a good thing. As Leftist as the unions are they still have some concern for their members whereas the LCB’s are driven only by their own ideologies and self interests.
It is sort of scary to think there are 4 Supreme Court Justices that believe it is okay to compel speech as long is it is for a union. The same with the abortion ruling in CA etc. The bare minimum of freedoms now allowed in this country is becoming a concern.
I can’t wait to see the breakdowns on the descents.
Did you take note of Sotomayer’s dissent on the Trump Travel ban yesterday? Usually minority opinions try to make countervailing arguments that can be used in future disputes. But Sotomayer’s opinion was little more than one long primal scream about how Trump was a Meany and a Big Doody Head. It was embarrassing, in Robert’s remarks you can sense that he was embarrassed for the Court, that there were members that incapable of articulate argument.
And that’s where the 4 liberals on this court are today.
Yes, Trump is “mean as a wolverine”.
Every time she says or writes anything, it just confirms my belief that she is a quota-hire through and through, and was a quota admission to law school.
Yes, she is a “quota hire”, but she is a dangerous quota hire.
As I stated yesterday – Sotomayer claims the constitution requires that we discriminate against certain US citizens in Ricci and Shuttee, yet says we cant discriminate against non-us citizens who have no connection with the US.
go figure that logic.
That’s why I’m not concerned about Kagan and Sotomayor being Obama’s “legacy” – they’re are both completely out of their depth.
None of their opinions carry any weight because they have zero basis in Law.
The harm they can do is limited merely to which side they vote on. Even when they’re on the winning side, the opinion is so shoddy that a future court can scrap the whole thing.
I don’t think the 4 liberal justices decided the way they did based on ideology. I think they just didn’t want to be kicked out of the exclusive restaurants or not invited to the glittering cocktail parties.
RBG comes from a long line of union members.
it is true that in the 30s to 60s the unions resonated –
now that most jobs (used to) include basic health, vacation and other benefits, no longer
But FORCING union membership as a requirement of a job is pure socialism.
the swing goes back and forth – you inhale and you exhale.
Georgetown cocktail parties ARE their ideology.
Read Kagan’s nonsensical rant against this decision. She’s obviously been drinking heavily.
“I think they just didn’t want to be kicked out of the exclusive restaurants or not invited to the glittering cocktail parties.”
I think that’s why conservative justices almost always become unreliable conservatives as time passes. They are too solicitous of others, even their political enemies, saying nice things about them.
I wonder when I get to stop paying my Union. The leeches have been stealing from my paycheck and using it to advocate against me for years.
Join one of the class action lawsuits against the unions and get your money back.
That will be dependent on what state you reside in.
In NY, they have already put into place preemptive rules intended to mitigate and circumvent this ruling by SCOTUS; Hurdles which will make in difficult to either opt out or withdraw and rulings of what they (bargaining units) “will not” provide the non-member employed by an employer subject to mandatory bargaining contracts.
I’ve not read the ruling yet, but I think in this case, the union has to have a signed contract from the employee agreeing to to have fees withheld. So employees are already out and will not have to ‘opt-out’.
Referencing only NYS where Albany is ruled by the unions, those that are currently enrolled have already signed a form designating their affiliation as member with or without agency status. The rules (hurdles of limited window and wait periods) referred to are those put in place to make it extremely difficult if not prevent removing your registered status and being charged union or agency dues.
For those coming into public employment, mandatory meetings with Union Reps (co-workers) will be required to solicit (?) enrollment participation and to inform the new employee of what that will mean to them for future employment i.e; union benefits. In small schools, municipal government it might be inferred as the cost of getting and/or keeping their job.
Janus – YES – YES – YES
I was just down at my local Funerals-Is-Us store. They told me the local Democrat Party had just purchased their entire inventory of black crepe fabric.
Another “win” courtesy of Justice Neil M. Gorsuch since we know well that had Obama succeeded in getting Garland on the bench this would have gone the other way.
It saddens, and worries, me that so many decisions are 5-4.
Every time SCOTUS comes out with a 5-4 decision, the former members of the Obama administration should be more and more embarrassed by all the 9-0 decisions that went against Obama.
Anything which hurts public sector unions is OK by me, but it’s not obvious that it should be OK by SCOTUS. Reading this decision into “Congress shall make no law … abridging the freedom of speech” without even resorting to any emanations of penumbras is quite a feat of byzantine gymnastics.
To belabor the obvious, a union isn’t Congress, dues aren’t laws, and paying for someone else to speak is in no way an abridgement of anyone’s right to speak on his own behalf. And while it’s probably not too obtuse to read this as a consequence of the 1977 precedent, that precedent itself has only a tenuous, if not entirely imaginary, link to the 1st A.
I seriously dislike seeing American liberties hanging by such feeble—and damn near invisible—threads. On the plus side, I don’t have to postulate that there’s villany afoot whenever the Court has a 5-4 decision. It’s conceivable that there are four Justices who, not unreasonably, find such reasoning too much to swallow.
If we look at it as “No government of the people shall abridge the freedom of speech” it seems easy enough to me that compulsion is an abridgment. Employees are compelled to pay for the speech under threat.
A union is authorized by the government and given the force to compel that only a government can get away with. Guns and badges and all that.
The SC just made public sector unions into organizations that have the force of their membership, as they should have been all along.
Too bad they couldn’t just ban public sector unions outright, or at least prohibit them from any kind of political activity.
In Louisiana, it used to be that all state workers were compelled to contribute and work for candidates of the party in power. Failure to do so could cost you your job.
Eventually, to end this practice, they passed laws forbidding state employees from a variety of political activities, including the display of bumper stickers or yard signs endorsing any political candidate.
It is one of the few good points for FDR…. opposing public employee unions…. then. I doubt he would embrace that now though as control is all important.
“In Louisiana, it used to be that all state workers were compelled to contribute and work for candidates of the party in power. Failure to do so could cost you your job”
I would argue that the patronage system was better than what we have now. When that system was ascendant the new boss in town can and did clean house. It kept government employees on their toes. That is why progressives went after it hard on “corruption” and “professionalism” rhetoric. Taking down the patronage system mean the bureacracy was permanently entrenched and could never be cleaned out.
Nobody claimed that unions are Congrefs, but no union forces non-members to pay it anything; they can’t. It’s the state that does the forcing, and the 14th amendment effectively changed “Congrefs shall make no law” to “Neither Congrefs nor any state (nor any of their subsidiaries) shall make any law”.
Making someone pay for someone else to speak things he disagrees with is certainly an abridgement of his right to speak on his own behalf. The right to speak has always been understood to include the right not to speak. This is absolutely fundamental and obvious. It’s why privately run parades can’t be compelled to include messages they don’t agree with. And it’s why, as the Supreme Court said on Tuesday, private clinics can’t be compelled to tell patients about abortion (and by the same logic mohalim can’t be compelled to tell parents about the alleged risks of a traditional bris).
The defense of agency fees in Janus is based on a fair share of the cost of representing the employee’s work conditions, compensation, etc. As Alito pointed out, the allocation to employment negotiation was 76% – does anyone seriously think such an allocation is even remotely close or credible.
Overlooked entirely (of course) is that the union actually hurts at least as many members as it helps. Employees cannot demand the wages they have earned, they have to accept the wages and terms as dictated by the union.
I don’t see how you can know how many it hurts and how many it helps, to be able to say the two groups are equal. It seems just as plausible to suppose that the union-negotiated rate is more than the vast majority of workers would be able to get on their own, and only a few would have been able to do better. How can one know such a thing a priori?
Joe-Dallas:
My bias against unions says no, but in principle an honest and diligent union could easily achieve such a number. Then again, such a union would probably have no problem retaining its members voluntarily, and not need to charge agency fees.
now need to strike down the ability of unions (this seems to happen more with persons covered under railway act which includes airlines now) to claim exclusive representation.
Wow! This is huge. And the activists thought they were angry about the “travel ban” ruling.
To borrow from an Instapundit commenter, ‘mrkwong’:
“It will be a great day in America when the military gets all the hardware it needs, and public employee unions have to hold a bake sale to buy a Congressman.”
A good day, indeed!
Looking forward to all the ” chilling effect ” stories that will be written. This is the first check on civil service or state unions in about ever. Huge first step. No doubt there will be more in the next few years. #Winning
This decision makes perfect sense and is long overdue. Right to work states allow workers to unionize in most businesses. However, any worker who does not want to be a member of the union does not pay dues and, except in the area of collective bargaining, has no access to union services or protections. Usually, only a small minority do not join a collective bargaining unit [union] once one is accepted in the workplace. But, those people’s right to decide who to associate with must still be respected.
“When speech is compelled, however, additional damage
is done. In that situation, individuals are coerced into
betraying their convictions. Forcing free and independent
individuals to endorse ideas they find objectionable is
always demeaning, and for this reason, one of our landmark
free speech cases said that a law commanding “involuntary
affirmation” of objected-to beliefs would require
“even more immediate and urgent grounds” than a law
demanding silence.”
So, does the baker STILL have to bake that cake, or the florist STILL have to arrange those flowers?
Do they have to for a mixed-race or mixed-religion marriage, if they object to such things? The current orthodoxy, which I don’t understand at all, equates this to racial or religious discrimination, because the objection is based entirely on the racial or religious identities of the partners, and thus the same thing translates to same-sex marriages.
This dogma is the bastard offspring of Loving, which I’m not 100% convinced was correctly decided, precisely because it raises this question.
All I know is that in the unlikely event I am ever asked to provide my wedding-related services to a couple of whom one is Jewish and the other not, I will refuse regardless of the law. God’s law trumps any man-made law that contradicts it, and I believe that God’s law makes such a marriages a crime, and providing services to help it happen would make me an accomplice. My grandparents were not deterred by the NKVD, so how could I let the relatively puny force of the US legal system intimidate me?
PS: I would also refuse to provide my services for same-sex “marriages”, but not for civil unions, commitment ceremonies, or anything else that doesn’t usurp the name “marriage”. The chance of my ever being asked to do so is higher than it is for interreligious marriages, but still not significant.
Tom Servo–commenting on Sotomayor’s dissent—what did you expect froma wise Latina? She’s doing the best she can.
And frankly she looks smarter than Patty Murray and Elizabeth Warren. Which isn’t saying much.
These liberal women, and others, are killing the case for the advancement of women. For decades, we have been told that the traditional stereotype of women as being ruled by emotion, rather than logic and facts, is totally false. Women are supposed to be extremely capable of making decisions based solely upon rational, analytical thought. Then, we have some of the premier women, in a profession which is supposed to be ruled entirely by logic and fact, base decisions totally upon emotion, while excluding any logical, rational analysis. Not helping women’s rights.
Kagan though is the intellectual heavyweight of the left wing of the court. There are brilliant women, a few (that one at least) even on the left. Sotomayor however isn’t one of them, judging by her performance in oral arguments, which is at about the level I could deliver. I am not even a lawyer.
“Tom Servo–commenting on Sotomayor’s dissent—what did you expect froma wise Latina? She’s doing the best she can.
And frankly she looks smarter than Patty Murray and Elizabeth Warren. Which isn’t saying much.”
OUCH
These people are frickin insane. The ruling is an attack on collective bargaining??? No, the ruling is to prevent unions from confiscating money from people…unions aren’t the progressive government as much as they try to be.
No, their argument is not insane. I think it’s wrong, but it’s plausible. When unions negotiate a rate with an employer that becomes the de facto baseline rate for everyone it hires; few people would be willing to accept less. Thus nonmembers benefit from this negotiation without having to pay for it, which would in turn lead members to wonder why they should pay for something their non-member colleagues get for free, and so drop out themselves. In some states the union can avoid this by providing in the contract that only its members may be hired, or that any non-members must be paid less than this rate, but in some states that’s illegal.
This is the same argument for anyone who makes an improvement that benefits his neighbors being able to collect from them. In principle I don’t agree with this argument, and believe that if the improvement gives you enough benefit to justify it then you should do it anyway, and if it isn’t then put the facts to your neighbors and see whether they’re willing to chip in voluntarily. If they don’t then the improvement doesn’t get made; you think this means everyone loses, but they obviously don’t think so, and who’s to say who’s right?
TLDR: Market failure is indeed a thing, but government failure is much more common, and should be a greater concern.
Winning never gets old!!!
Enormous.
Beginning of the end of public sector unions.
it’s not over yet, need to see how the NY’s attempt go get around it will play out with the decision now that it is out, and how it will affect the home care providers that receive government assistance to attend to their love ones.
Easy to forget how egregious the practice had become in blue States. They were taking out taxpayer money from homecare providers receiving a subsidy from the State or Federal government, giving the money to the unions, which in turn gave a portion of the money to the Democratic Party and left wing politicians.
The point that all these demorats miss, if a union represents its member they will gladly pay the dues and stay members. Even the forced fee employee can see the the benefits of collective bargaining.
So the fear is every member quits. No that will not happen because even the forced fee participants can see the advantages of the grievance and work site rules that are in place. The problem is collecting is a pain in the butt. You will always have the hard core union member. They may die out over a generation or two. But the unions will again re-market and this time maybe leave the Demorats on the sink ship with out them.
I have read other accounts stating that the amount was $550 from Janus’ annual pay and not the $50 as stated in this piece. Either amount of compulsory pay for a public sector union member is thievery by another name. Public sector unions are a scourge upon the taxpayers just in pension liabilities alone 🙂
I will not be surprised when the future post election polling shows that many “private” sector union rank and file members support Trump’s economic agendas 🙂
The “Union” is just hanging by a thread with these 5-4 decisions. Now with the latest judge declaring how soon to reunite children under the Trump Admin (but perish the thought of bringing this up under Uber-Prez Obama) we once again see what Justice Thomas was concerned about in the travel ban.
I wonder which judge will now rule the Supreme Court decisions null and void?
Power is slipping through the hands of the Left and back to the Republic and The People. The oscillations Left to right – Right to Left will increase. Imagine the wholesale abrogation of present decisions under a Prog controlled government. The Rule of Law is now “who rules makes the laws (up as they go along)” (thank you Bill Clinton).
This ruling only states non-members cannot be forced to pay union dues. Does not say anything about a position where union membership is a requirement of employment. I believe my daughter was required to join the union when she got her teaching job. Can these people now opt out of the union?
I do not believe they can opt out of the union, but they CAN opt out of paying that portion of their dues which are used for political purposes, and the Union is required to provide them with that data. And the portion used for political purposes is usually well past 50%.
That’s the Abood requirement, that the service fee must be paid but not the part going to political purposes. Abood is now gone. I believe now union membership cannot be required.
“a position where union membership is a requirement of employment.”
This goes to the heart of the ruling.
No, States which have state and local public educational and municipal civil service unions will no longer have that as a prerequisite for employment.
In NYS, Albany preempted the anticipated ruling with regulations about what will constitute limited windows of time (hurdles) in opting out per filing a withdrawl form received from a currently enrolled in either agent or active membership (current membership was not abolished per this ruling..only the right of non-membership). They have formalized also what an employer must provide the union officials in order to meet with any new hire as to be able to solicit that employee to opt in.
The majority opinion says explicitly toward the end that the employee must opt into the union, maybe to foreclose such shenanigans. I don’t see how NY can persist with that, at least I hope not.
I was forced to join AFSCME. I objected to the political use of my dues. The union screwed around for over a year and still had not stopped taking the “political” chunk out of my dues. So, I got myself elected shop steward and then elected to the local board and forced them to stop taking the damn money out of my paycheck.
Lots of work but it was fun screwing with the union and I was fully supported by the members (Sheriff’s department).
That’s because you got Abood enforced. Now you can get Janus enforced, meaning you don’t have to pay any money at all to the union.
“whose rights have been trampled on”
Oh please. Dispense with the histrionics. Stopping the involuntary seizure of agency fees from non-union workers is nowhere near the same as “trampling on the rights” of those who for whatever inexplicable reason want to be in a union. Unionize to your heart’s content (although I think there’s a case to be made against public sector unions). Pay all the union dues you want. Just quit digging into my pocket for “agency fees” for union representation, which I never asked for in the first place.
Now I’d appreciate it if all the agency fees which were extorted from me could be refunded. WITH INTEREST.
Kagan (the intellectual heavyweight of the court’s left wing) writes the dissent, and it uses a remarkable trick. She invents a whole justification for Abood that is nowhere mentioned in Abood, then uses that to attack the Janus decision.
She says that governments have an interest in dealing with a single well funded bargaining unit representing their employees. Well enough funded to hire attorneys, accountants, researchers, etc. They want a really tough opponent sitting opposite them at the bargaining table because … ??? And then she has the chutzpah to invoke “economic theory” in some way!
I was surprised to read and understand that Abood only allows governments to require all employees pay service fees to the union. Now of course if the government were operating properly as a representative of the public, it would want a weak union. But the reason government unions grew so strong was that governments encouraged it, apparently!
Still, that reasoning is so absurd according to economic theory and bargaining theory that it exists nowhere in Abood. Kagan tries creating it, and I hereby call her out on this. Caught you!