Supreme Court

Monday's Big Supreme Court Case Will Decide the Future of Public Sector Unions

Janus v. AFSCME could end mandatory union dues payment. Counter-intuitively, it might strengthen the labor movement.



Mark Janus remembers getting his first pay check from the Illinois Department of Public Health, where he works as a bookkeeper, and wondering about the $50 fee deducted to pay dues to a union he'd never agreed to join.

More than a decade later, the disagreement over that fee has brought Janus before the U.S. Supreme Court, as the plaintiff in a case that could change the landscape of public sector unionism in the United States. The high court will hear oral arguments in Janus v. American Federation of State, County, and Municipal Employees (AFSCME) on Monday morning. Janus and his attorneys are asking the court to overturn a previous decision and "declare [mandatory public sector union] fees unconstitutional."

Over the years, Janus estimates, he's contributed more than $6,000 to the union—all against his will. Even so, he says it's not about the lost money.

"It's about my rights," Janus told Reason. "My right to say 'no' is at least as important as my right to say 'yes.'"

A ruling in Janus' favor 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. Janus says he does not see any benefits from being a member of his union, but he wants other workers to have the chance to decide for themselves.

Public employee unions have more than 7 million members, and the automatic dues payments are a reliable source of revenue for the powerful, and often political, entities. The AFL-CIO, a coalition of private- and public-sector unions, organized protests on Saturday against Janus' case. In a statement, the AFL-CIO warns that a victory for Janus would "rig the system even more against working people by taking away their freedom to have strong unions."

The unions are trying to protect a precedent set by the Supreme Court in 1977. That case, Abood v. Detroit Board of Education, upheld mandatory union fees on the grounds that non-payers would become "free riders" who could benefit from collective bargaining activities without contributing towards the associated costs. More to the point, unions are trying to preserve their ability to collect revenue without consent—something no other private institution can do.

Ben Johnson, a former head of the Vermont chapter of the American Federation of Teachers, believes public sector unions actually have been hurt by Abood and the decades-long gravy train it inaugurated.

Johnson, who has submitted an amicus brief to the Supreme Court in favor of Janus, recalls a poll that was commissioned by AFT during his time as a union official, asking non-members why they had not joined the union. The most common answer? Because no one had asked them.

"The agency fee is such a core model of the business model of unions that you don't even have to bother asking people to join up," Johnson told Reason. "These are membership-based organizations, for a hundred years they lived or died by membership, and they don't even bother to ask people to join."

Losing at the Supreme Court—and losing automatic dues payments—might actually strengthen the labor movement by forcing unions to change how they operate, he says.

Monday's oral arguments will be the second chance for most members of the current court to hear about the mandatory dues issue. In many ways, Janus is best thought of as a sequel to Friedrichs v. California Teachers Association, a 2016 Supreme Court case. That case ended in a 4–4 draw after Justice Antonin Scalia's sudden death left the Court with an even number of conservative and liberal members.

For obvious reasons, that means all eyes in this case will be fixed on the newest justice, Neil Gorsuch. Attorneys representing Janus tell Reason that there is not much in Gorsuch's legal history that gives a clear indication of his perspective going into the case. More generally, though, the conservative Gorsuch's originalist views suggest he may be skeptical of the union's side of the case.

Read more Reason coverage of today's big case.

John Stossel on the potential to extend "right to work" to public sector employees.

Damon Root on the First Amendment aspects of the case.

Scott Shackford on the Trump administration's Department of Justice reversing it's stance on mandatory union dues.

Eugene Volokh and Alicia Hickok debating the merits of the case.

And check out a conversation between Nick Gillespie and Mark Janus on the Reason podcast.