Supreme Court

Is This the Supreme Court's Next Big Case Against Public-Sector Unions?

Janus v. American Federation of State, County, and Municipal Employees asks SCOTUS to end mandatory public-sector union fees.


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.

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  1. A 4-4 vote previously makes this a no-brainer, in my opinion, for granting cert.

    Public unions need to go away. They serve no purpose other than being a revenue and vote generating apparatus for the Democrats. They have civil service protection and wage rates are public information. No need for unions here.

  2. This kind of sounds like double jeopardy. I realize this isn’t a criminal trial.

    How can they bring a second case to the supreme court when it has already ruled on this issue?

    1. The last ruling was a tie, i.e. indecisive.

    2. So after slavery was declared legal, there was no way to overturn it. Huh, I had no idea that was the real reason for the Civil War!

      1. The Dred Scott case was ruled “under the present Constitution”. That Constitution changed after the Vermont congressman wrote and Congress passed another Tariff of Abominations during the 4-month lame-duck hiatus that then existed between the election and the swearing-at. Lincoln was elected, Norrill’s tariff passed, and The South stood to lose all the concessions gained by the nullification crisis. There was NO alternative but to secede, and the North went to war to preserve the Customs Union. The colonial slavers lost, mercantilist yankees won, and the tariff took the place of the Acts of Navigation in funding government under British Mercantilism.

    3. If the current SCOTUS mix thinks a previous SCOTUS decision violates the constitution, they can overrule it.

      Stare decisis applies to cases where the language of the constitution is vague and the prior decision made a reasonable call, in which case it would stand, even if another reasonable conclusion was possible.

  3. Under the Chevron deference principle, the Court could decide that it’s not their place to second-guess the union’s determination that paying union dues to support political speech (in the form of lobbying for higher pay for union members even at the cost of raising taxes or cutting spending in some other area) is a non-partisan, non-political issue. Or they could just declare that union dues are a penaltax. Who the hell knows?

    And that’s the problem – nobody knows how the hell the Court’s going to rule on any given case because there’s too damn many laws and too damn many rulings that you can find an argument for supporting whatever the hell decision you want to reach. The justices can argue all they want that they examine the facts and then make a decision but how the hell would you know if they made their decision first and then dug up facts to support their pre-determined decision? What would they do differently if the latter were the case rather than the former?

    1. Well, theoretically they’re supposed to only be looking at one document when making their decisions but those days are long over.

      1. They also need to look at laws. Not every supreme court case is about whether a law is constitutional or not. And the Constitution is pretty vague about what exactly the court is supposed to do.

    2. The Chevron doctrine does not apply to all forms of deference, only to executive bureaucracies. The Political Question doctrine would be a more likely excuse than Chevron.

  4. Don’t see how this doesn’t violate Free Association. Free Association equally means that you can choose to NOT associate if you do not wish to.

    Next case: Trump, if he wanted to REALLY piss folks off, should argue that civil service laws are an unconstitutional violation of the rights of the Executive branch to staff itself as it sees fit. Theoretically, Congress shouldn’t have the power to demand and equal branch of government abide by their preferred employment rules.

    1. Don’t see how this doesn’t violate Free Association. Free Association equally means that you can choose to NOT associate if you do not wish to.

      The counterargument is that you are free to not associate by quitting since paying these fees is a job requirement.

      1. I’d actually love that to win. It’d kill ALL discrimination law.

        “Well, you can quit and work elsewhere if you don’t want guys grabbing your tits”

      2. “The counterargument is that you are free to not associate by quitting since paying these fees is a job requirement.”

        But it is a requirement mandated by the state – not the individual company.

        Big difference

  5. Huh, things would get bloody in the public sector for a couple years if this got passed. Government workers would start dropping the unions and the unions would start fighting back against the workers. I imagine someone would end up in the hospital before all is said and done.

    1. Unlikely.

    2. Ridding the cities of organized criminal organizations is dangerous work but someone’s gotta do it.

    3. Long live the Calico Cat and Gingham Dog.

  6. Trump is under investigation for obstructing justice.

    1. According to admitted criminal leaker — and all-around creepy power-seeking glory hound — Comey.

  7. 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.

    Shit, where’d my tinfoil hat go?

    1. Are you going with the tribley or the bowler? I am going to opt for the classic deerstalker.

  8. John F Kennedy was supposed to have issued an executive order allowing union goons and government labor racketeers to form a compact of coercion. Why doesn’t someone here find out if that’s true? The text of such an EO would be homework for anyone arguing such matters before La Suprema Quirt.

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