State governments can compel public-sector workers to pay union fees as a condition of employment, even when those workers are not union members. The U.S. Supreme Court approved this practice in the 1977 case Abood v. Detroit Board of Education, on the grounds that non-union "free riders" should still have to contribute something to the union's treasury, since those non-members also benefit from the union's collective bargaining activities. Needless to say, mandatory fees have been a boon to public-sector unions over the past 40 years.
But the Supreme Court almost overturned the Abood precedent last year in a case called Friedrichs v. California Teachers Association, in which an eight-member Court deadlocked 4-4 and narrowly preserved the status quo. Most court-watchers believe that if Justice Antonin Scalia had not died unexpectedly while Friedrichs was still under deliberation, Abood would have been reversed by a 5-4 vote.
This week a potentially explosive new petition asked the Court to pick up where Friedrichs left off and overrule Abood once and for all. The case is Janus v. American Federation of State, County, and Municipal Employees, Council 31. Mark Janus is a public-sector worker in Illinois who has declined to join his local public-sector union, yet is required by state law to pay fees to support general collective bargaining activities. He maintains that this requirement violates his First Amendment rights because it forces him to support political speech and political activity that he does not wish to support. His goal is to overturn the 40-year-old precedent that undergirds the state requirement. "The Court should take this case," Janus' lawyers argue in their petition, "to overrule Abood and declare [mandatory public-sector union] fees unconstitutional."
If that argument sounds familiar, it's because California public school teacher Rebecca Friedrichs took the same basic position in her case last year. Like Janus, Friedrichs refused to join the public-sector union and objected to the payment of mandatory union fees on First Amendment grounds. "Just as the government cannot compel political speech or association generally," Friedrichs' lawyers told the Supreme Court, "it cannot mandate political speech or association as a condition of employment."
Friedrichs appeared to be on her way to a 5-4 victory. But then Justice Scalia died in February 2016 and, a little over a month later, the Court issued a terse 4-4 ruling that affirmed the status quo. Without Scalia around to tip the balance, Abood remained in place.
Which brings us back to the petition filed this week in the Janus case. Now that Justice Neil Gorsuch has joined the bench, Janus and his lawyers are betting that the new conservative majority is prepared to take another swing at Abood.
SCOTUSblog reporter Amy Howe thinks the Court "is likely" to take the case. She may be right. After all, four justices have already signaled their willingness to rule against the public-sector unions on this issue, and Gorsuch could conceivably provide the fifth vote they need. If there are now five justices willing to overrule Abood and limit the legal privileges afforded to public-sector unions, this case is their opportunity to do so.