On Monday, while his fellow Supreme Court colleagues contentiously sparred along familiar ideological grounds, Justice Neil Gorsuch remained stone silent during an oral argument that will likely have a monumental impact on labor unions in America.
The suit brought by Illinois child support specialist Mark Janus revolves around “agency fees.” Simply put, agency fees are funds collected by unions from non-union workers. Typically, they amount to far less than union dues and are only utilized to negotiate collective bargaining agreements of which these non-union members reap the benefits. These funds cannot be used for any political lobbying or inherent political actions undertaken by the union.
If this issue surrounding Janus v. AFSCME sounds familiar, it’s not déjà vu. A nearly identical suit was brought last year and ended deadlocked after Justice Antonin Scalia died.
For this matter, the road taken back to the Supreme Court has been undeniably complex — paved with secret donors’ money and political aims. Make no mistake: this is a proxy war. At its core lies a First Amendment issue that threatens to overturn a legal precedent dating back 40 years.
It begins with the “free rider” dilemma.
In 1977, the Supreme Court decision Abood v. Detroit Board of Education found that compelling school employees to pay union dues impacted their First Amendment rights. Many educators did not want their money contributing to the typically left-leaning political activities undertaken by many unions. They claimed that paying compulsory union dues violated the First Amendment right against “compelled speech.” The Supreme Court agreed.
Striking a compromise, the Court allowed the collection of agency fees from objecting employees, which barred the union from using its contributed funds for any political, lobbying or litigation actions that ventured beyond the scope of collective bargaining negotiation. This compromise would prevent workers — colloquially known as “free riders” — from benefiting from union representation in the form of higher pay and benefits, while contributing nothing financially.
The decision was unanimous, and for the last 40 years, the Abood precedent was reaffirmed by the Supreme Court several times. Over 20 states have enacted statutes in accordance with this precedent, and nearly 5 million public-sector workers currently pay agency fees.
The crux of Mark Janus’ current claim is that these mandatory fees do, in fact, constitute “compelled speech.” Janus contends that because wages and benefits for public employees influence state budgets and taxes, they are inherently political issues. And since he is forced to contribute in the form of agency fees, he’s “speaking” on a political issue against his consent, violating his First Amendment rights. Specifically, Janus is concerned about his home state’s fiscal troubles.
“The union says it is advocating for me, but here is how I see it: At a time when Illinois is drowning in red ink and does not have the money to deliver core services, such as caring for the poor and disadvantaged, the union is wrangling taxpayers for higher wages and pension benefits for state workers,” Janus recently wrote in an op-ed. “The union’s fight is not my fight.”
It’s a reasoning so selfless and idealistic — but the Janus case may also be viewed as a cover for a long, bitter proxy war between free-market and labor union interests. This particular battle is being funded wholly by a number of conservative groups, which are capitalizing on an ideological shift that has deeply divided the American judiciary and ushered in a modern era where “a more conservative Supreme Court majority has aggressively viewed money as speech.” Very plainly, these actors are aiming for a coup de grâce against already weakened American unions on partisan political grounds.
Facing the Supreme Court is the decision to overturn four decades of legal precedent on an issue long-settled in the eyes of the law. This prospect has sparked outrage among many legal scholars. To understand why, and what’s truly at stake, it is critical to grasp the concept and importance of “stare decisis.”
Courts routinely cite “stare decisis” when an issue is brought to them that has already been decided in a previous ruling. It literally translates to “standing on things already decided.” Not only does it foster reliance on past decisions, it ensures the integrity of the U.S. judicial system. The rulings of higher courts trickle down as law to the lower courts. Legal principles remain consistent over time. Theoretically, the political swings of various eras should not impact the non-partisan wisdom of the judiciary.
Until recently, it was a rare occurrence for courts to overrule stare decisis or precedent. Often, it would require a major error of law in the initial ruling — a very high bar. Other times, significant societal changes could prompt the Supreme Court to overrule precedent, as seen in the 2003 reversal of Bowers v. Hardwick, which overturned a previous Supreme Court decision that had upheld Georgia’s anti-sodomy laws.
In considering the law enshrined in Abood, many scholars feel that stare decisis should hold. A brief submitted by First Amendment scholars and UCLA professors Eugene Volokh and Gary Swartz echoed this legal sentiment.
“Under the doctrine of stare decisis, Abood should not be overturned unless it reached the wrong result,” they wrote. “The Court should overturn Abood only if, going back to first principles, it can establish that the Free Speech Clause does protect a right that is violated by agency fees. But the First Amendment provides no such right. The judgment below should be affirmed.”
In fact, the Supreme Court has already ruled in 2006 that First Amendment protections do not extend to public employees, when speaking within the realm of their job. In Garcetti v. Ceballos, a California District Attorney claimed he was passed over for a promotion after criticizing the legitimacy of a warrant to his superiors. Despite the validity of his criticisms, the Supreme Court majority ruled that the First Amendment does not protect speech made “in the course of doing his or her job,” but only speech as a private citizen. If actual utterances and written word aren’t protected as a public employee, it’s hard to see how Mark Janus’ non-political financial contributions to a union constitutes an infringement on the First Amendment.
And yet, in 2011, a curious thing happened.
In an unrelated case involving public unions, Justice Samuel Alito purposefully went out of his way to question the Constitutionality of agency shop fees. This was viewed by many as an open invitation to challenge Abood. It was also a very rare occurrence, unaligned with the typical role of the Supreme Court and duly admonished by several liberal-leaning Justices on the bench.
Ironically, Alito was part of the majority decision in Garcetti, which didn’t extend First Amendment protections to public workers. Even for legal scholars, this proved deeply difficult to reconcile. However, what is publicly known is that Justice Alito has been a longtime critic of Abood on an ideological level. In a previous case (Harris v. Quinn) challenging agency fees, Alito railed against expanding the ruling of Abood. He said doing so would “give carte blanche to any legislature to put at least professional people into goose-stepping brigades [that] are not compatible with the First Amendment.”
With Abood vulnerable, it didn’t take long for political machinery to kick to life.
In Illinois, at the heart of this battle, Republican Governor Bruce Rauner signed an executive order prohibiting state unions from collecting agency fees. Rauner then attempted to bring a similar case to Janus to federal court, but was thrown out for lack of standing — having no personal interest at stake in the matter.
Mass mailings from the conservative-minded and anti-union Illinois Policy Institute (IPI) — a think-tank formerly allied with Governor Rauner — reached the mailboxes of nearly every government worker in the state. These fliers offered unsolicited tips on how to withdraw from unions and assured Illinoisans there could be no repercussions for refusing to strike. The IPI is backed financially by conservative mega-donor Richard Uihlein. The Illinois-based industrialist had donated more than $2.6 million to Rauner’s governor’s race and previously contributed heavily to the campaign of Scott Walker in Wisconsin — a man who famously passed a bill voiding the collective bargaining rights for unions that didn’t support his governorship run.
Thereafter, a major attempt to overturn Abood, Friedrichs v. California Teachers Association, was argued in 2016, and ended deadlocked after Scalia’s death. With the issue back at the Supreme Court, Mark Janus’ legal team is now composed of attorneys from the Liberty Justice Center, a sister affiliate of the Illinois Policy Institute.
The cast of major characters funding the challenge to Abood is small. According to the Economic Policy Institute, the National Right to Work Legal Defense Foundation, Center for Individual Rights and Liberty Justice Center — all separate nonprofit organizations spearheading this challenge — share many of the same uber-wealth donors, including Charles Koch, the Lynde and Harry Bradley Foundation, the Richard and Helen DeVos Foundation, and the Dunn’s Foundation for the Advancement of Right Thinking.
This is precisely what has changed since Abood — not our widespread understanding of the First Amendment, or a seismic shift in society and culture. Instead, it’s been the ascendancy of organizations funded by hyper-wealthy donors. Their goal is to cripple unions based on free-market ideological and economic justifications. Their playground of influence, after years of donating hundreds of millions in a successful effort to change the complexion of America’s courts, has encroached into the highest levels of the judiciary.
In Janus, the entire financial framework of American unions, which allows them to organize and negotiate successfully, is at stake. With a diminished capacity to collectively bargain, the 17 percent wage gap between union and non-union workers in the same occupation would certainly drop. Women and minorities would be disproportionately impacted. Working conditions could worsen.
Further, the political ramifications of weakened unions are lost on nobody. In a recent study, it was found that “right-to-work” laws allowing employees to avoid paying union fees affected both the turnout and the Democratic share of the presidential votes by over 3 percent.
The decision will likely come down to the man who replaced Antonin Scalia, Justice Neil Gorsuch. It is widely believed that he will side with Alito and the Court’s conservative majority.
A Constitutional question is the beating heart of Janus, which may create irreconcilable harm to First Amendment interpretation. This case is a crusade of opportunity, a fight to overrule precedent solely because the composition of the court has changed. Serious institutional harm may result, and this potential political leakage into the non-partisan sacredness of our American judiciary is the crisis of soul in Janus v. AFSCME.