“. . . the majority has chosen the winners by turning the First Amendment into a sword, and using it against workaday economic and regulatory policy . . . The First Amendment was meant for better things. It was not meant to undermine but to protect democratic governance – including over the role of public-sector unions.”
– Justice Kagan, dissenting
On the last day of its term, the U.S. Supreme Court released Janus v American Federation of State, County, and Municipal Employees, Council 31, a much-anticipated ruling over public sector union fees.
In a 5-4 decision, the Court ruled that requiring public sector employees to pay mandatory agency fees violated the First Amendment’s guarantee of freedom of speech. “Agency” or “fair share” fees refer to dues that unions use to further their activities in support of their members, such as collective bargaining and filing grievances.
Janus overturns the landmark 1977 decision Abood v Board of Education, in which the Supreme Court ruled that it was unconstitutional for public sector unions to use mandatory union dues for explicitly political purposes, such as supporting a political candidate. In Abood, the Court ruled that this particular use of mandatory fees violated the First Amendment by compelling employees to support political causes regardless of their own beliefs. Mandatory agency fees, on the other hand, were still permissible, the Court ruled, because they directly served and benefited those employees who paid them. After Abood, approximately 22 states allowed public unions to deduct mandatory agency fees, while twenty-eight states legislated to prohibit it.
One of the 22 states that permitted mandatory agency fees was Illinois, where the petitioner in this case, Mark Janus, worked for the government as a child support specialist. He objected to his union’s bargaining positions, which he felt did not appreciate the current fiscal crises in Illinois, and he did not wish to support those positions through agency fees.
Justice Alito, writing for the majority of the Court, found in favour of Janus. The Abood decision, the majority held, does not adequately account for the fact that public sector bargaining is inherently political because of its potential to impact public budgets. The Court ruled that avoiding “free riders” – employees who would opt out of agency fees but still benefit from the union’s bargaining – is not an adequate justification for violating the First Amendment. Accordingly, Justice Alito wrote, “neither an agency fee nor any other form of payment to the public-sector union may be deducted from an employee, nor may any other attempt be made to collect such payment, unless the employee affirmatively consents to pay.”
As Justice Kagan wrote in her powerfully-worded dissent, the majority’s ruling represents one of the most significant departures from precedent in the history of the Supreme Court. As Justice Kagan noted, Abood is not a dusty decision fading from legal memory, but is embedded in the law and the labour relations of the United States.
Indeed, Janus introduces radical changes for public unions, which, in twenty-two states, are bracing themselves to take a big hit. Following Justice Alito’s ruling, a union member will not just have the choice to opt out of fees – she will by default not contribute unless she affirmatively opts in.
At the same time, private sector unions can be cautiously optimistic that the same fate is not in store for them. While the recent nomination of ultra-libertarian Brett Kavanaugh spells trouble for the labour movement more broadly, the Janus majority emphasized the differences between public- and private-sector bargaining in finding against the former.
Private and public sector American unions alike, however, have good reason to envy organizers to the north, where Charter rights offer extensive protections to labour unions. In 1991, the Supreme Court of Canada unanimously ruled in Lavigne v OPSEU that public sector unions can use mandatory fees for both bargaining and explicitly political lobbying. In more recent years, the Supreme Court of Canada has also held that strikes are a constitutionally protected form of freedom of association.
Still, Canadian organizers should be mindful of the international wave of conservatism that this decision represents, particularly in Ontario, where unions have four long years of Doug Ford to contend with.