In the Janus v. AFSCME ruling, the U.S. Supreme Court decided 5-4 that public-employee unions can no longer charge agency fees to nonmembers. The ruling, which overturns the 1977 Abood v. Detroit Board of Education decision, is a major blow for teachers’ unions, which will likely see big drops in both revenue and membership.
The following are passages from the majority and dissenting opinions.
Majority Opinion (Delivered by Justice Samuel A. Alito Jr.)
On the First Amendment
- “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. … Abood was wrongly decided and is now overruled.”
- “In simple terms, the First Amendment does not permit the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.”
- “As Justice [Robert H.] Jackson memorably put it: ‘If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.’ [The 1943 ruling West Virginia Bd. of Ed. v. Barnette held that compelling schoolchildren to salute the flag violates the First Amendment.] 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.”
- “We recognize that the loss of payments from nonmembers 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 considerable windfall that unions have received under Abood for the past 41 years. It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. ”
- “The idea of public-sector unionization and agency fees would astound those who framed and ratified the Bill of Rights. … We do know … that prominent members of the founding generation condemned laws requiring public employees to affirm or support beliefs with which they disagreed. … Jefferson denounced compelled support for such beliefs as ‘sinful and tyrannical’ …”
On Unions as Exclusive Representatives for Employees
- “ … it is simply not true that unions will refuse to serve as the exclusive representative of all employees in the unit if they are not given agency fees. As noted, unions represent millions of public employees in jurisdictions that do not permit agency fees.”
- “Even without agency fees, designation as the exclusive representative confers many benefits. … These benefits greatly outweigh any extra burden imposed by the duty of providing fair representation for nonmembers.”
- “Whichever description fits the majority of public employees who would not subsidize a union if given the option, avoiding free riders is not a compelling interest. … Many private groups speak out with the objective of obtaining government action that will have the effect of benefiting nonmembers. May all those who are thought to benefit from such efforts be compelled to subsidize this speech?”
On the Future of Employer-Employee Relations
- “In Abood, the main defense of the agency-fee arrangement was that it served the State’s interest in ‘labor peace’ … but Abood cited no evidence that the pandemonium it imagined would result if agency fees were not allowed, and it is now clear that Abood’s fears were unfounded.”
Dissent (Delivered by Justice Elena Kagan)
On the First Amendment
- “The majority overthrows a decision entrenched in this Nation’s law—and in its economic life—for over 40 years. … 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.”
On Unions as Exclusive Representatives for Employees
- “Remember that once a union achieves exclusive-representation status, the law compels it to fairly represent all workers in the bargaining unit, whether or not they join or contribute to the union. … And that in turn creates a collective action problem of nightmarish proportions. Everyone—not just those who oppose the union, but also those who back it—has an economic incentive to withhold dues; only altruism or loyalty—as against financial self-interest—can explain why an employee would pay the union for its services.”
On the Future of Employer-Employee Relations
- “[The court’s] decision will have large-scale consequences. Public employee unions will lose a secure source of financial support. ... Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways.
- “ …there is no way to confine the union’s services to union members alone (and thus to trim costs) because unions must by law fairly represent all employees in a given bargaining unit—union members and non-members alike.”
- “The majority undoes bargains reached all over the country. … It does so with no real clue of what will happen next—of how its action will alter public-sector labor relations. It does so even though the government services affected—policing, firefighting, teaching, transportation, sanitation (and more)—affect the quality of life of tens of millions of Americans.”
