June 27, 2018

Supreme Court Decides Janus v. American Federation of State, County, and Municipal Employees, Council 31

On June 27, 2018, the U.S. Supreme Court decided Janus v. American Federal of State, County, and Municipal Employees, holding that the First Amendment does not permit states to require public-sector employees to contribute money to unions that represent them, and overruling its previous contrary holding in Abood v. Detroit Board of Education.

In Illinois and other states, when public-sector employees vote to unionize, “that union is designated as the exclusive representative of all the employees,” who “are forced to subsidize [the] union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities.” Under the Supreme Court’s Abood decision, “nonmembers may be charged for ... the union’s duties as collective-bargaining representative,” but not for “the union’s political and ideological projects.”

Mark Janus is an Illinois public employee who is represented by a union, but who “opposes many of the public policy positions that it advocates.” The district court dismissed his challenge to Illinois’ law as foreclosed by Abood, and the Seventh Circuit affirmed.

The Supreme Court reversed by a five to four vote. After addressing a preliminary issue of standing, the Court reached the merits and overruled Abood. “[T]he compelled subsidization of private speech,” the Court held, “seriously impinges on First Amendment rights” by forcing employees to support views they oppose. The Court therefore rejected the union’s invitation to adapt its more lenient free-speech principles from cases involving discipline for disruptive workplace speech by individual public-sector employees, holding that those principles do not properly apply to “general rules that affect broad categories of employees,” especially when the rules compel speech.

Declining to decide whether strict scrutiny applies to compelled subsidies, the Court held that Illinois’ law failed the “exacting scrutiny” standard it has applied in other First-Amendment cases. The Court assumed that a state has a compelling interest in not having to bargain with multiple competing public-employee unions. But it noted that the federal government and 28 states designate exclusive public-sector unions without compelling financial support from non-members. Despite the burdens of representing non-paying employees, unions in these jurisdictions still “avidly” seek exclusive status, and the power and benefits that come with it. The Court acknowledged that this might let non-members “free ride” on the union’s collective-bargaining efforts, but it held that “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.”

The Court therefore overruled Abood. It declined to apply stare decisis because it found that Abood was poorly reasoned, drew an unworkable line between “chargeable and nonchargeable union expenditures,” and has been undermined by later empirical evidence that exclusive-bargaining arrangements are feasible for public-sector unions even without compelling payment from non-members. Moreover, the Court observed that unions should not have relied on Abood because union contracts are typically re-negotiated every few years, and in the last several years the Court has repeatedly questioned whether Abood was correct.

Justice Alito delivered the opinion of the Court, in which Chief Justice Roberts and Justices Kennedy, Thomas, and Gorsuch joined. Justice Kagan dissented, joined by Justices Ginsburg, Breyer, and Sotomayor. Justice Sotomayor also filed a separate dissent.

Download Opinion of the Court.

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