[Editor’s Note: This post was updated with additional analysis at 1:55 p.m.]
This morning the Supreme Court announced that government employees who are represented by a union but do not belong to that union cannot be required to pay a fee to cover the union’s costs to negotiate a contract that applies to all employees. The 5-4 decision overturned an earlier ruling, dating back to 1977, that allowed the unions to charge such fees, which are often known as “fair share” or “agency” fees. Opponents of the fees hailed today’s ruling as a major victory for the First Amendment, while Justice Elena Kagan, who wrote the main dissent in the case, warned that the ruling could disrupt “thousands of ongoing contracts involving millions of employees.”
The decision came in the case of Mark Janus, who works as a child-support specialist for the Illinois Department of Healthcare and Family Services. Janus – who is not a union member – challenged the $45 per month that is deducted from his paycheck to go to the local branch of the American Federation of State, County, and Municipal Employees, the union that represents him. He argued that requiring him to pay even a limited fee to cover the cost of collective bargaining violates the First Amendment, because it finances speech by the union intended to influence the government on issues like salaries, pensions and benefits for government employees. And that, he said, is no different than requiring him to subsidize a group that lobbies the government.
Janus’ case is the third time in recent years that the justices have been asked to weigh in on the constitutionality of “fair share” or “agency” fees. In 2014, in another case from Illinois, the justices never reached the question, holding instead that the employees in that case – home health aides, who are paid by the state but generally take care of family members – were not actually government employees. Two years later, the justices heard oral argument in a challenge by a group of California public-school teachers, but Justice Antonin Scalia died before the court could release its opinion, leaving the eight-member court deadlocked.
In an opinion by Justice Samuel Alito, the court concluded today that the fees violate the First Amendment. No one would doubt, Alito wrote, that the First Amendment bars a state from requiring its residents to “sign a document expressing support for a particular set of positions on controversial public issues.” Requiring someone to pay for speech by someone else also raises First Amendment concerns, Alito noted. And whether the constitutionality of agency fees is reviewed using the most stringent test (known as “strict scrutiny”) or a more permissive test, Alito concluded, the union fees are unconstitutional.
In Abood v. Detroit Board of Education, the 1977 decision upholding agency fees, Alito explained, the Supreme Court pointed to the state’s interest in “labor peace” and in avoiding the problem of “free riders” – people who reap the benefits of union representation without paying for them. But any worries about “conflict and disruption” in the absence of union fees have been proven wrong in the 41 years since Abood, Alito suggested. Alito observed that the federal government does not allow the kind of fees at issue in this case, but “about 27% of the federal work force” belong to unions. And in the 28 states that do not allow these fees, he continued, there are “millions of public employees” who are represented by a union – without any evidence of the “pandemonium” that the Abood court “imagined would result if agency fees were not allowed.”
Nor is the possibility of a “free rider” problem enough to justify the fees, Alito continued: “Many private groups speak out with the objective of obtaining government action that will have the effect of benefitting nonmembers. May all those who are thought to benefit from such efforts be compelled to subsidize this speech?” For example, he posited, could the government require all senior citizens to subsidize the AARP, because it lobbies on their behalf? “It has never been thought,” Alito wrote, “that this is permissible.” He concluded: “In simple terms, the First Amendment does not permit the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.”
Having concluded that the fees violate the First Amendment, Alito turned to the next question: Whether the court should overrule the Abood decision. Alito acknowledged “the importance of following precedent unless there are strong reasons for not doing so” –a legal doctrine known as stare decisis. Stare decisis is “at its weakest,” Alito reminded his readers, in cases involving the interpretation of the Constitution, “because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.” Moreover, he added, the doctrine “applies with perhaps least force of all to decisions that wrongly denied First Amendment rights.” Because “[f]undamental free speech rights are at stake,” Alito concluded, there are “very strong reasons” to overrule Abood.
Alito pointed to several factors that led the majority to reach that conclusion. First, he asserted, the Abood decision was “poorly reasoned, because, among other things, it relied on cases involving a “very different First Amendment question” than the one before it, and it used a standard that was too permissive to review the constitutionality of the union fees.
Second, the Abood ruling has proven “unworkable,” because (as even the unions themselves conceded in this case) it is so hard to distinguish between the expenses that nonmembers can be required to shoulder and those that they cannot. In this case, for example, public employees who do not belong to the union must pay for “unspecified” lobbying expenses and other services that may benefit them. “That formulation,” Alito noted, “is broad enough to encompass just about anything that the union might choose to do.” And even if a nonmember wanted to challenge a fee, Alito continued, it would be a “laborious and difficult” task given the dearth of information provided by the union to explain the fees.
Third, the court decided Abood in a very different legal and economic environment; since the ruling 41 years ago, public spending – including the “mounting costs of public-employee wages, benefits, and pensions” – has skyrocketed, giving collective bargaining a political significance that it might not have had at the time of the Abood ruling.
Finally, the prospect that the unions and public employers may have relied on the constitutionality of the agency fees (for example, in negotiating the collective bargaining agreements now in effect), is not, in Alito’s view, a reason to keep Abood. It “would be unconscionable,” Alito wrote, “to permit free speech rights to be abridged in perpetuity” when the contracts currently in force will only last a few more years, Alito stressed, and in any event the unions and public employers have known for several years that the Abood ruling could be in jeopardy.
Alito acknowledged that today’s decision “may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members.” But those side effects are outweighed, he suggested, by the “many billions of dollars” that “have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment.” From now on, Alito instructed, the nonmembers cannot be charged the fees at issue unless they affirmatively agree to pay them.
Justice Elena Kagan wrote the main dissent in the case, which was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Kagan emphasized that, for over four decades, the Abood decision “struck a stable balance between public employees’ First Amendment rights and government entities’ interests in running their workforces as they thought proper.” Kagan complained that there “are no special justifications for reversing Abood”: ”To the contrary,” she argued, “all that is ‘special’ in this case—especially the massive reliance interests at stake—demands retaining Abood.” Kagan stressed that the Abood ruling “is deeply entrenched,” as over “20 States have statutory schemes built on the decision” that “underpin thousands of ongoing contracts involving millions of employees.” Kagan criticized the majority for acting, in her view, “with no real clue of what will happen next—of how its action will alter public-sector labor relations. It does so even though the government services affected—policing, firefighting, teaching, transportation, sanitation (and more)—affect the quality of life of tens of millions of Americans.”
As the Kagan dissent suggests, the justices’ decision could have repercussions beyond Illinois in the 22 other states (along with the District of Columbia) that also currently allow public-sector unions to collect fees from nonmembers to cover the cost of collective bargaining. One study released in May predicted that, if Janus prevailed, public-sector unions could lose over 700,000 members, and wages for public employees could drop by several percentage points. Another study of teachers’ unions agreed that an adverse decision could leave the unions “permanently crippled”: “They will lose membership, which will result in steep declines in revenues, which in turn may curtail their ability to affect the policy process.” But that same study also suggested that the ruling could leave teachers unions leaner and meaner, by serving as “the impetus for teachers unions to return to their roots and become a way for teachers to voice their dissatisfaction with public education today.” Whatever happens, we can be sure that groups on both sides of this case will be watching closely.
This post was also published on SCOTUSblog.