Earlier this week, the U.S. Supreme Court heard a case that could undermine—if not completely dismantle—public unions. It’s the culmination of years of effort by conservative union-busting groups such as the National Right to Work Legal Defense Foundation. It’s also, more dangerously, the culmination of years of effort by Justice Samuel Alito to get a case before the Court so he could help that cause. And, after Monday’s oral arguments, it is clear that the conservative wing of the Court would like to assist him.
In hearing Janus v. American Federation of State, County, and Municipal Employees, Council 31, the Supreme Court is examining another public union fees case—one of several over the last 40 years in which public-sector employees have challenged the union’s right to collect dues. At root, all of these cases are challenges to the right of any union that covers public-sector workers to collect certain fees from individuals who choose not to join the union, but still benefit from the collective bargaining process.
Forty-one years ago, in Abood v. Detroit Board of Education, the Supreme Court addressed the fact that public sector unions (like their private sector counterparts) use union dues for both political purposes, such as lobbying their representatives, and non-political purposes, such as collective bargaining. A teacher challenged these fees, saying they didn’t agree with the union’s politics or ideology and that making them pay the fees was a First Amendment violation. The Supreme Court held that people who opposed the union’s organizing and political activities could opt out of that portion of the union dues, but were still required to pay the portion devoted to collective bargaining: the “fair share” fees. In other words, making people pay for political speech can violate the First Amendment, but making them pay for the benefits of collective bargaining—higher wages, better job protections, greater benefits—is not.
Conservatives, eager to dismantle the protections of unions, have sought to overturn Abood ever since—and Janus may give them that chance.
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Janus itself has a bit of a complicated history. The case was originally brought by Illinois Republican Gov. Bruce Rauner, not a worker who was seeking to avoid the fees. Rauner is a longtime union foe, having tried to undermine unions in a number of different ways in his quest as a governor to turn Illinois into what is often called a “right-to-work” state. These included a lawsuit filed in 2016 arguing that Illinois’ statute that mandates fair share fees violated the First Amendment because it forced employees who disapprove of the union to pay a portion of fees anyway.
The United States District Court for the Northern District of Illinois, Eastern Division, dismissed the complaint by the governor, pointing out he didn’t have standing to sue because he is, of course, not subject to any of the fees. However, two public employees, Mark Janus and Brian Trygg, then intervened; their complaint essentially substituted for that of the governor. Trygg was ultimately dismissed from the lawsuit before it reached the appellate court because he’d sued over this same issue before and had already received the relief he wanted: to pay the fair share fee to a charity rather than the union. So the case continued on to the U.S. Court of Appeals for the Seventh Circuit with only Janus as a plaintiff. Janus lost at that court, and appealed to the Supreme Court, which took the case.
It’s no surprise that it did so. Justice Alito has been trying to get the Court to overturn union fees for years. In 2012, Alito wrote the majority opinion in Knox v. Service Employees Int’l Union, Local 1000, when the Court held that California was incorrect to impose a “special assessment” fee for an emergency temporary increase in political campaign funding without providing notice to non-union members before deducting fees from paychecks. The Court held that rather than forcing non-union members to opt out of the fees, they should instead be allowed to opt in—which would, arguably, decrease the amount of individuals who chose to have the fees deducted. Alito clearly signaled he would have gone farther, scorning the idea that it is justified to have non-union members pay fees for the benefits they receive from the union’s collective bargaining efforts. Anti-union forces celebrated the decision, noting that it set the stage for the Supreme Court to further undercut the ability of unions to collect fees.
He almost got his way in Harris v. Quinn, back in 2014. Harris, which also originated in Illinois, involved home health-care workers who had wages paid by the state but were not directly employed by it. Instead, most of the the control over their employment, such as hiring or firing, was at the discretion of the individual that hired them for health care services. Justice Alito, writing for the conservative majority, held that the home health-care workers did not have to pay dues to the union representing state-employed health-care workers. However, the unique nature of their employment made this a narrow holding that didn’t reach all public sector unions. In his opinion, though, Alito went so far as to question whether Abood remained good law.
He did so by twisting himself into knots over what constitutes a matter of “public concern.” Unions are prohibited from collecting fees from non-members to engage in political lobbying on matters of public concern, which would normally be read to mean things such as who should be elected governor or whether a certain bill should pass. Alito argued, though, that public unions negotiating for higher wages and better benefits—the very definition of collective bargaining—is a matter of public concern because it could lead to increased state expenditures. In other words, Alito was functionally stating that state employees might not want their union to work to achieve higher wages or better benefits because they are concerned about government spending.
This is, of course, absurd. Instead, those employees wish to receive the benefits of union organizing without paying for union efforts.
Anti-union groups saw the Harris decision as an open invitation to bring Alito a case that would allow him to overrule Abood explicitly. They tried to do it with Friedrichs v. California Teachers Association, but the death of Justice Antonin Scalia meant the Supreme Court deadlocked 4 to 4. Thus, the lower court decision upholding union fees stood.
It was inevitable that another case would make its way to the court quickly. And why not, given Justice Alito’s hunger for such a case? There are a number of groups pushing to give him one. In Friedrichs, it was the Center for Individual Rights. This time around, with Janus, it’s the National Right to Work Legal Defense Foundation and the Liberty Justice Center.
William Messenger is the attorney for the National Right to Work Legal Defense Foundation, and he argued the case for Mark Janus. The solicitor general of the United States was also there, arguing on the side of the anti-union forces—a 180-degree flip from the United States’ previous position on public union cases. At oral arguments, Justice Sonia Sotomayor called Solicitor General Noel Francisco out on the Trump administration’s tendency to switch positions, getting Francisco to grudgingly admit that the United States has changed course on three Supreme Court cases already.
But the rest of the oral argument proceeded just as you’d suspect. It’s clear that members of the court’s conservative majority subscribe to Justice Alito’s view that unions bargaining with the state for things like higher wages is somehow a matter of public concern, and therefore political—and that it’s therefore impermissible for the union to impose fees to cover their costs.
This was evident when Justice Kennedy scorned the collective bargaining goals of unions. He said they “advocat[e] for a greater size workforce, against privatization, against merit promotion … for teacher tenure, for higher wages, for massive government, for increasing bonded indebtedness, for increasing taxes.” It’s quite telling the Kennedy included things like “higher wages” and tenure as something sinister and undesirable.
The liberal wing of the Court, meanwhile, kept trying to point out how absurd the conservative stance is. As that stance goes: If a union agitates for higher wages and better benefits, that’s a matter of public concern, but if an individual, or a small collection of individuals, does so, then it is just fine. Yet, as Justice Sotomayor pointed out, even one employee requesting higher wages has a fiscal impact on the state, so it seems impossible that wouldn’t be a matter of public concern.
At its heart, the Janus case is about judicial activism. Typically, conservatives like to define activist judges as those judges who strike down laws that reflect the will of the people (even if those laws are nakedly racist or homophobic). The notion of judicial activism—when judges use the law to shape policy—is neither good nor bad, but only conservatives tend to insist they don’t engage in it. In cases like Harris, however, that’s exactly what Alito did. There, the Illinois legislature had voted to allow home health-care workers to organize, and a majority of those home health-care workers voted to do so. Alito ignored the will of the people of Illinois and overturned the law. At the same time, Alito signaled he’d like to do much, much more to get rid of unions.
It’s nearly impossible to find a path where public-sector union fees in 22 states around the country don’t get destroyed by Janus, given that four justices voted against unions in Friedrichs and there’s simply no way that the newest justice, Neil Gorsuch, won’t do the same. Even though he stayed, oddly, completely silent at oral argument, he has already indicated he favors employers and looks askance at unions and efforts to protect workers.
It’s taken a lot of years and four cases, but Justice Alito will likely finally get to force the judicial outcome he’s wanted—regardless of what the people of Illinois, or anywhere else, actually want.