The Supreme Court has ruled that government workers have the right to be free from mandatory union dues. In a 5-4 decision, the court announced that government workers’ free speech rights prevent the compelled fees. Justice Alito wrote for the majority in yet another case that broke along well-worn ideological lines. He was joined by Roberts, Thomas, Gorsuch, and Kennedy, while Justices Sotomayor, Ginsburg, and Breyer joined Justice Kagan’s dissent.
How great would it be if you could force customers to buy your product, whether they like it or not? Leaving aside how reprehensible it would be, it would certainly be good for business, providing that one thing almost no business gets to have — insurance against the competition. That’s what Illinois law gave to unions who represented government workers where “[o]nly the union may engage in collective bargaining; individual employees may not be represented by another agent or negotiate directly with their employer.” Mark Janus changed all that for Illinois and the rest of the country.
Janus is a state employee who did not join the union and did not want the union to negotiate or speak for him in any way. The law didn’t require him to join, but it did require him to pay up. Under the Supreme Court's decision in a 1977 case called Abood, government employees who don’t wish to join unions may be compelled to pay for an “agency fee” or “fair share” of union costs they claim are associated with collective bargaining. Janus argued that coercing him to pay these fees amounts to forced speech, in violation of his First Amendment rights, just as if he were compelled to subsidize any lobbying group.
The majority agreed, dealing a body blow to public sector unions. Without the right to legally force people to pay them, these unions will no doubt face some serious challenges in the marketplace. Unions and their defenders proclaim people who don’t want to pay for union representation are “free riders” who gain the benefits of collective bargaining without bearing any costs. Justice Alito writes:
Petitioner strenuously objects to this free-rider label. He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage.
Justice Kagan’s dissent seemed less concerned with Mr. Janus’ free speech rights than with upsetting the apple cart:
Rarely if ever has the Court overruled a decision — let alone one of this import — with so little regard for the usual principles of stare decisis. There are no special justifications for reversing Abood. It has proved workable. No recent developments have eroded its underpinnings. And it is deeply entrenched, in both the law and the real world. More than 20 States have statutory schemes built on the decision. Those laws underpin thousands of ongoing contracts involving millions of employees. Reliance interests do not come any stronger than those surrounding Abood.
All those things are true, and yet, there is Mr. Janus’ right, and yours and mine, to be free from compelled speech. Stare Decisis, or the notion that the Supreme Court must give serious consideration to its own previous decision-making is no replacement for honoring our rights — inconvenient though such recognition may be. As Justice Alito says:
This procedure violates the First Amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s 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.
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