For the third time in the past four years, the U.S. Supreme Court has now heard arguments as to whether public sector unions violate the First Amendment rights of non-members by forcing them to subsidize the unions’ political bickering with governmental boards over terms of employment. With the High Court now returned to full strength, a 5–4 ruling that the unions indeed are violating constitutional rights through this scheme of compelled speech seems highly likely when major decisions are made public in June.
Yet, strangely enough, during the Feb. 26 oral arguments in Janus v. American Federation of State, Municipal, and County Employees, the liberal justices’ most impassioned argument was that the public-employee unions’ continued well-being should be a higher priority than ending their ongoing violation of workers’ constitutional rights. After all, the Constitution is supposed to protect workers like the plaintiff in this case, Mark Janus, an Illinois child-support worker who objects to being docked dues by a union whose representation he doesn’t want.
During oral arguments, the four members of the court’s liberal bloc slanted their arguments heavily toward the welfare of the unions and away from the substance of First Amendment free-speech protections for individuals. For instance, Justice Elena Kagan emoted at length on the practical necessity of so-called “reliance interests” freezing in place a 40-year-old precedent (Abood v. Detroit Board of Education) that green-lighted the unions to pick the pockets of non-union workers to pay collective-bargaining costs. “Agency fees” is the antiseptic term for this thievery.
“Twenty-three states, the District of Columbia, Puerto Rico, all would have their [bargaining] statutes declared unconstitutional at once,” Kagan asserted. “Thousands of municipalities would have contracts invalidated. Those contracts probably cover millions, maybe up to over 10 million, workers.”
Kagan demanded to know: What could justify all that disruption for unions and governments that rely upon that precedent remaining undisturbed? The reply from William Messenger, lawyer for Janus, was succinct: “The prevalence of these compulsory unionism provisions isn’t reason for retaining Abood; it’s reason for reversing Abood. You have widespread First Amendment violation, as you said, in 23 states affected.”
For her part, Justice Ruth Bader Ginsburg not only fretted that the abolition of agency fees would deprive the unions of substantial “resources,” but that even heretofore willing union members might stop paying dues if payment were no longer mandatory. Again, Messenger (who had a good day) had a crisp riposte: “Well, I submit, Your Honor, it’s immaterial why an individual does not wish to support union advocacy. The First Amendment prohibits the government from probing into individuals’ subjective belief.”
Yet another liberal justice, Stephen Breyer, put a bizarre twist on legal history, arguing that the petitioners basically were “trying to apply a more modern framework to some older cases.” Breyer asked if that approach should extend all the way back to overturning Marbury v. Madison, the 1803 verdict by the John Marshall court that established the legitimacy of judicial review of actions by Congress and the president.
This argument scaled the height of absurdity. While the High Court’s doctrine of stare decisis makes clear that precedent merits respect and should not be casually overturned, the Supreme Court has in reality reversed dozens of its prior decisions. One of the most momentous and important instances of this was the celebrated reversal of the noxious notion of “separate but equal” that an earlier court had established in Plessy v. Ferguson, propping up racial segregation in the South for 50 years. Some Supreme Court precedents cry out to be overturned.
A decision invalidating agency fees for public-sector unions would deliver a major blow to public employee unions that rely upon Abood, as Kagan asserted. Ginsburg is also right that even some union members might opt out of the hefty dues and indeed union membership itself.
However, this case isn’t about the unions. A victory for Mark Janus would be a triumph for thousands of independent-minded public employees, including teachers, firefighters, and police officers, and their constitutional right to free speech.
Robert Holland ([email protected]) is a senior fellow for education policy with The Heartland Institute.
