On June 27, the Supreme Court issued it’s highly anticipated decision in Janus v. AFSCME regarding “fair share” union fees. In a 5-4 decision, Justice Alito delivered the opinion, stating that the current “agency fee” imposed on non-union members violates the First Amendment. If you remember, the Janus case originated out of Illinois and challenged the state law permitting unions to charge agency fees to non-members. In efforts to avoid “free-rider” problems, laws of this nature have been enacted and validated under the notion that the non-member workers, though they are not a part of the union, still benefit from the union’s bargaining efforts.
The court, flatly overruling the 1977 precedent from Abood v. Detroit Board of Ed., held that to force free and independent individuals to endorse the ideas and the position of unions, violates their First Amendment right to free speech. Everything a union does is “speech.” When a union speaks, it speaks behalf of the employees it represents. Issues affecting unions are naturally political and under the previous fee arrangement, employees have no way of truly knowing whether unions are using the agency fees for bargaining activities as required by Abood, or using it for political and ideological projects. To compel a person to subsidize the speech of other private speakers is inherently unconstitutional.
Overturning decades of a landmark precedent is no light matter. Stare decisis is meant to promote the predictable and consistent development of legal principles. There must be strong circumstances present to overturn such a decision. After more than 40 years since the Abood decision, Justice Alito determined that the agency fee arrangements established in that case, and the policies underlying it, are no longer applicable. According to Justice Alito, the Abood decision was poorly reasoned, lacked workability and clarity, and has now been “eroded” due to the factual and legal developments since its ruling. He also remarked that the two issues Abood sought to rectify through agency fees are no longer prevalent. In particular, the risk of “free riders” (individuals who take advantage of a common resource without paying for it), is not a compelling state interest and cannot overcome First Amendment objections. And the interest in “labor peace,” while a legitimate one, is an interest that may be achieved through less restrictive means than through the assessment of agency fees.
Justice Kagan, in her dissent opinion with Justice Ginsburg, Breyer, and Sotomayor, warned of the large scale consequences that this decision will leave upon unions. This ability to collect fees from non-members provides a secure source of financial support for public employee unions that is no longer available.