In the Janus v. AFSCME ruling, the U.S. Supreme Court decided 5-4 that public-employee unions can no longer charge agency fees to nonmembers. The ruling, which overturns the 1977 Abood v. Detroit Board of Education decision, is a major blow for teachers鈥� unions, which will likely see big drops in both revenue and membership.
The following are passages from the majority and dissenting opinions.
Majority Opinion (Delivered by Justice Samuel A. Alito Jr.)
On the First Amendment
- 鈥淣either an agency fee nor any other payment to the union may be deducted from a nonmember鈥檚 wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. 鈥� Abood was wrongly decided and is now overruled.鈥�
- 鈥泪苍 simple terms, the First Amendment does not permit the government to compel a person to pay for another party鈥檚 speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.鈥�
- 鈥淎s Justice [Robert H.] Jackson memorably put it: 鈥業f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.鈥� [The 1943 ruling West Virginia Bd. of Ed. v. Barnette held that compelling schoolchildren to salute the flag violates the First Amendment.] Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned.鈥�
- 鈥淲e recognize that the loss of payments from nonmembers 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 鈥� we must weigh these disadvantages against the considerable windfall that unions have received under Abood for the past 41 years. It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. 鈥�
- 鈥淭he idea of public-sector unionization and agency fees would astound those who framed and ratified the Bill of Rights. 鈥� We do know 鈥� that prominent members of the founding generation condemned laws requiring public employees to affirm or support beliefs with which they disagreed. 鈥� Jefferson denounced compelled support for such beliefs as 鈥榮inful and tyrannical鈥� 鈥︹��
On Unions as Exclusive Representatives for Employees
- 鈥� 鈥� it is simply not true that unions will refuse to serve as the exclusive representative of all employees in the unit if they are not given agency fees. As noted, unions represent millions of public employees in jurisdictions that do not permit agency fees.鈥�
- 鈥淓ven without agency fees, designation as the exclusive representative confers many benefits. 鈥� These benefits greatly outweigh any extra burden imposed by the duty of providing fair representation for nonmembers.鈥�
- 鈥淲hichever description fits the majority of public employees who would not subsidize a union if given the option, avoiding free riders is not a compelling interest. 鈥� Many private groups speak out with the objective of obtaining government action that will have the effect of benefiting nonmembers. May all those who are thought to benefit from such efforts be compelled to subsidize this speech?鈥�
On the Future of Employer-Employee Relations
- 鈥泪苍 Abood, the main defense of the agency-fee arrangement was that it served the State鈥檚 interest in 鈥榣abor peace鈥� 鈥� but Abood cited no evidence that the pandemonium it imagined would result if agency fees were not allowed, and it is now clear that Abood鈥檚 fears were unfounded.鈥�
Dissent (Delivered by Justice Elena Kagan)
On the First Amendment
- 鈥淭he majority overthrows a decision entrenched in this Nation鈥檚 law鈥攁nd in its economic life鈥攆or over 40 years. 鈥� And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.鈥�
On Unions as Exclusive Representatives for Employees
- 鈥淩emember that once a union achieves exclusive-representation status, the law compels it to fairly represent all workers in the bargaining unit, whether or not they join or contribute to the union. 鈥� And that in turn creates a collective action problem of nightmarish proportions. Everyone鈥攏ot just those who oppose the union, but also those who back it鈥攈as an economic incentive to withhold dues; only altruism or loyalty鈥攁s against financial self-interest鈥攃an explain why an employee would pay the union for its services.鈥�
On the Future of Employer-Employee Relations
- 鈥淸The court鈥檚] decision will have large-scale consequences. Public employee unions will lose a secure source of financial support. ... Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways.
- 鈥� 鈥here is no way to confine the union鈥檚 services to union members alone (and thus to trim costs) because unions must by law fairly represent all employees in a given bargaining unit鈥攗nion members and non-members alike.鈥�
- 鈥淭he majority undoes bargains reached all over the country. 鈥� It does so with no real clue of what will happen next鈥攐f how its action will alter public-sector labor relations. It does so even though the government services affected鈥攑olicing, firefighting, teaching, transportation, sanitation (and more)鈥攁ffect the quality of life of tens of millions of Americans.鈥�
