Wednesday, in Janus v. American Federation of State, County and Municipal Employees, the U.S. Supreme Court held that an Illinois law that compelled public employees to subsidize a union, even if they choose not to join and strongly object to the union’s positions, violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of public concern. It is the Supreme Court’s third opinion striking down compelled speech and speech subsidies in recent days.
As tends to be the case, the media’s focus (even the conservative media) has tended to be on the political fallout—that it is a blow for public-sector unions. Fair enough: AFSCME contributes hundreds of millions of dollars to Democrats and millions more to progressive activist groups. Indeed, the real figure is probably four times higher. But the Supreme Court’s job is to interpret the Constitution, not referee the political effects.
So how did the court reach its decision? Under Illinois law, which says state employees must vote to unionize, employees who choose not to join the union were still required to pay an “agency fee,” which ostensibly excluded union spending related to the election or support of any political candidate. In reality, non-union employees paid 78 percent of full union dues, including for lobbying, litigation, and advertising.
The Supreme Court had ruled this sort of law constitutional in a 1977 case called Abood v. Detroit Board of Education. In Janus, the Supreme Court overruled Abood. This was not unexpected: in more recent cases (Harris v. Quinn and Knox v. Service Employees), the court had previously called Abood “something of an anomaly” and its analysis “questionable on several grounds.”
Writing for the majority, Justice Samuel Alito observed:
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. Suppose, for example, that the State of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues—say, the platform of one of the major political parties. No one, we trust, would seriously argue that the First Amendment permits this.
Alito continued: “Compelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns.”
As often happens, the parties disputed the level of legal scrutiny to give the law. Mark Janus’s lawyers argued for “strict scrutiny” (the highest level) while the dissenting justices argued for effectively applying the “rational basis” test (the lowest level of scrutiny, applied in this week’s decision on President Trump’s travel ban). The court majority decided that the law here was unconstitutional under a third, intermediate standard of “exacting scrutiny,” which the court had applied in its earlier opinions in Harris and Knox.
The majority ruled the reasoning offered in Abood was insufficient. The main rationale in that case was preserving “labor peace.” The Janus court noted that federal law and the laws of 28 states generally bar “agency fees” and the 41 years since Abood demonstrated the fees are not required to maintain “labor peace.”
The Abood decision also relied on the risk of non-unionized “free riders.” Janus argued that he was “more like a person shanghaied for an unwanted voyage.” The Janus court noted that the “free rider” risk had already been rejected as a sufficient justification in Knox.
The majority then rejected two other compelling interests a state might have in compelled “agency fees.” Again based on experience, the court concluded the fees were not required for unions to represent non-members. The majority also concluded that it was not unfair to burden a union with representing nonmembers because that is a duty undertaken by a union that seeks exclusive representation and restricts rights the worker would have otherwise.
The Supreme Court further rejected new arguments advanced to defend the agency fees. The union actually argued that public employees have no free speech rights, which the majority noted would overturn decades of precedent, ironically where the union was relying on the doctrine of stare decisis to save Abood.
The union and dissenting justices relied on a 1968 case named Pickering, which held that a school district violated the First Amendment by firing a teacher for writing a letter critical of the school administration. Under Pickering and its progeny, employee speech also is largely unprotected if it is part of what the employee is paid to do.
The majority noted this argument was rejected in Harris and that Pickering was not the basis for Abood. Pickering involved an individual employee’s speech, not a blanket rule applying to many employees. Moreover, Pickering did not involve compelled speech or speech subsidies for a third party like a union.
Indeed, applying Pickering here would treat the union’s speech as equivalent to the employer’s speech, which is generally not the case. Applying Pickering also does not help where the union has been deeply involved in matters of public concern, including the Illinois budget crisis caused by the pension and health-care benefits lawmakers promised to public employees in exchange for their political support.
As the majority noted, collective bargaining is “inherently political” in the public-sector context. Given these factors, the Illinois law could not justify the burden placed on non-members’ First Amendment interests.
The four dissenting justices, as noted above, would effectively apply a “rational basis” test to the law and thereby uncritically accept the justifications the union and its allies offered. The dissenters essentially accept the policy choice Illinois made in favor of agency shop agreements over the constitutional rights of those forced into union representation.
Justice Elena Kagan complained that “[t]oday is not the first time the Court has wielded the First Amendment in such an aggressive way,” that “almost all economic and regulatory policy affects or touches speech,” and that “[a]t every stop are black-robed rulers overriding citizens’ choices.” When the civil rights of individual Americans are being violated by the majority, we can only hope so.
Janus caps a Supreme Court term that is surprisingly of the moment, given how long cases take to make their way to the court. The shape of American politics has increasingly become that of progressives trying to force everyone else to speak (and thereby eventually to think) as they do, at the threat of financial and professional ruin. But in Masterpiece Cakeshop, NIFLA, and now Janus, the Supreme Court, by the barest of majorities, has stood athwart unconstitutionally compelled speech and speech subsidies, yelling “Stop!”