Eric Boehm reported soon after the decision was announced on Wednesday morning:
More than four decades after the Supreme Court ruled that public sector workers could be required to pay dues to unions even if they do not join one, a 5–4 majority on the high court overturned that precedent in a closely watched case that could have major ramifications for the future of public sector unions.
“Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities,” Justice Samuel Alito wrote in the majority opinion. “We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”
In the short-term, the ruling in Janus v. American Federation of State, County and Municipal Employees means that plaintiff Mark Janus was successful in his decade-long fight to prevent the union from taking $50 out of his paycheck every two weeks. Over the years, Janus estimates, he’s contributed more than $6,000 to the union.
More broadly, Wednesday’s ruling could end the automatic deduction of union dues from millions of public employees’ paychecks, forcing unions like AFSCME to convince workers to voluntarily contribute dues — something workers would do, presumably, only if they have a reason to do so.
“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,” said Janus in a statement. “The right to say ‘no’ to a union is just as important as the right to say ‘yes.’ Finally our rights have been restored.”
The ruling is “a landmark victory for rights of public-sector employees,” said Mark Mix, president of the National Right to Work Legal Defense Foundation, which supported Janus’ lawsuit.
While today’s ruling certainly shifts the balance towards worker freedom, groups like the National Right to Work Legal Defense Foundation, which represented Janus, say they are already prepared for additional rounds of litigation. In states that previously have embraced right-to-work policies, unions have often tried to make it as difficult as possible for workers to renounce their membership.
At Hot Air, Jazz Shaw highlights a few of the key points:
Justice Alito wrote the decision and it followed along with the expectations of those who watched the case play out before the court. Also as expected, this was a 5-4 decision, split along partisan lines. At the heart of Janus was the question of whether or not unions can forcibly extract dues from workers’ paychecks without the worker proactively volunteering to contribute. In parallel to that, the court had to determine whether or not those extracted fees, being put toward lobbying efforts, constituted involuntary political speech on the part of the worker. The ruling answers both questions definitively.
You can read the full decision here [PDF] but I’ve extracted a couple of the key points from the syllabus. First is the issue of whether the previous ruling in Abood (which went in the unions’ favor) erred in allowing the forcible extraction of dues. Alito leaves no room for doubt.
The State’s extraction of agency fees from nonconsenting public sector employees violates the First Amendment. Abood erred in concluding otherwise, and stare decisis cannot support it. Abood is therefore overruled.
The second question was the one about subsidizing the speech of others when it runs contrary to your personal beliefs. Again, Alito is definitive.
Forcing free and independent individuals to endorse ideas they find objectionable raises serious First Amendment concerns. E.g., West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 633. That includes compelling a person to subsidize the speech of other private speakers.
A union official, Paul Shearon, the IFPTE Secretary-Treasurer, put out an immediate statement saying that this was based on, “a bogus free speech argument.” He went on to say that the justices voting in the majority “are little better than political hacks.” That was followed up by a threat to take it to the streets.
In the short run, the Janus decision may hurt some unions financially, but in the long run it will serve to make unions and their members more militant and force a stronger culture of internal organizing. The recent statewide teacher strikes demonstrate that when public sector workers face limitations on their bargaining rights they take their case to the streets.
This is going to send shockwaves through not just the unions, but the Democratic Party at large. The amount of money that the unions flush into Democratic coffers every year is likely more than most of you imagine.
Steven Malanga in City Journal provides some rough figures on how much money was at stake for the unions and their political activities:
With the appointment of Justice Neil Gorsuch, unions feared the outcome of the Janus case. After all, many union members have stated that they would give up their memberships if the court ruled that compulsory fees were illegal. An officer of the Communications Workers of America, which represents government employees in New Jersey, told an AFL-CIO convention last fall that only 54 percent of its 60,000 members said that they would remain in the union if they could opt out of paying fees. The California Teachers Association, meanwhile, crafted a 2019 budget that anticipated that as many as 23,000 members would leave if the court overturned the Illinois law. The union will also suffer from the loss of revenues from 28,000 nonmembers who’ve been paying agency fees, and will presumably stop doing so now that they’re no longer compelled. The union, according to a published report, estimated it could suffer a loss of some $20 million annually as a result.
Even before the ruling, government unions were reeling. Their membership has declined from a peak of 7.9 million in 2009 to 7.2 million today — a drop of nearly 9 percent. The portion of government workers in unions, which peaked in the mid-1990s at 38.7 percent, is now down to 34.4 percent, according to unionstats.com. Some of the decline is due to a significant reduction in the number of government workers after the 2008 financial crisis; even today, nine years into a recovery, the total number of government workers remains 10 percent lower than before the recession — a loss of 233,000 positions. But unions have suffered an even bigger falloff, because when government employment began trending back upward in 2014, union membership stayed flat. Many of the gains in government jobs since then have been in nonunion positions.
Unions have suffered big losses in Wisconsin, which banned compulsory unionization in the public sector in 2011. Some 140,000 union positions have dried up as workers chose not to retain their memberships. But other states that continued to compel workers to join a union or pay agency fees have also seen major losses, including New York, where union membership has fallen by 150,000, Illinois (down 88,000), Pennsylvania (down 54,000), and New Jersey (down 50,000). Those declines are reflected in union numbers, too. The National Education Association, the largest teachers’ union, has lost nearly 250,000 members, or about 8 percent of its membership, since 2009. AFSCME’s national membership has shrunk by 200,000, or 13 percent.
