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Supreme Court Takes on Public-Sector Unions

Ilya Shapiro and Frank Garrison

At the start of this “momentous” Supreme Court term — as
Justice Ruth Bader Ginsburg called it — most people are
focused on partisan gerrymandering. But it’s not clear that there
are five votes for inserting courts into every redistricting
decision, thereby creating an election-lawyer full-employment act.
Instead, as far as politics are concerned, what the term may become
known for is blunting the power and influence of public-sector

Two cases now before the Court pit the First Amendment rights of
millions of workers against a sort of government-union cartel that
makes the most feverish theories of Russian collusion with the
Trump campaign look like child’s play. Both revolve around one
fundamental question: whether state legislatures can force workers
into unwanted relationships with unions.

The first is Janus v. American Federation of State, County
and Municipal Employees
, which the Court has already announced
it will hear. Alas, the lawsuit does not challenge AFSCME’s disdain
for the Oxford comma. Instead, Mark Janus, who works for the
Illinois Department of Healthcare and Family Services, is
challenging a state law that mandates he pay “agency fees” to
support union collective-bargaining activities that he does not
support. Such a compulsion violates the First Amendment, he argues,
because collective bargaining in the public sector involves
advocacy on quintessentially political questions such as
taxpayer-funded wages and pensions, resource allocation, and
enforcement priorities. (Already this year, Illinois raised taxes
to pay a $100 billion public-pension debt.) Janus thus faces a
Hobson’s choice: Either fund advocacy he doesn’t like or find other

Two cases now before the
Court pit the First Amendment rights of millions of workers against
a sort of government-union cartel that makes the most feverish
theories of Russian collusion with the Trump campaign look like
child’s play.

Although the Supreme Court upheld the constitutionality of
non-union-member fees for public-sector workers in the 1977 case
Abood v. Detroit Board of Education, it has since
questioned Abood’s reasoning. In Abood, the Court
acknowledged that public-sector collective bargaining does
influence policy-making about “ideological” issues. Nonetheless,
the Court held that agency fees passed constitutional muster
because of “free rider” and “labor peace” concerns. The Court began
to scrutinize the flaws of this reasoning 35 years later in
Knox v. SEIU: “By allowing unions to collect any fees from
nonmembers … our cases have substantially impinged upon the
First Amendment rights of nonmembers.” Moreover, Justice Samuel
Alito noted for the majority, “Unions have no constitutional
entitlement to the fees of nonmember-employees.”

The Court then signaled the death knell for Abood in
the 2014 case Harris v. Quinn. Harris also originated in
Illinois, with then-governor Rod Blagojevich’s designation of
certain home-care providers as “public employees” for
collective-bargaining purposes (because they’re paid out of state
Medicaid funds). Despite many workers’ desire to remain
unaffiliated, a subsequent collective-bargaining agreement forced
them to fork over part of their wages to the Service Employees
International Union (SEIU). The Court struck down the law as a
violation of the non-union-member workers’ First Amendment rights
but did not overturn Abood. The Court reasoned that
because the law did not squarely concern “full-fledged public
employees” — as had been the case in Abood
it merely had to rule on whether Abood should be extended
to cover these workers. This is something the Court was unwilling
to do “because of Abood’s questionable foundations.” More
important, the Court, again through Justice Alito’s pen, announced
that it is a “bedrock principle that, except perhaps in the rarest
of circumstances, no person in this country may be compelled to
subsidize speech by a third party that he or she does not wish to

Two terms ago, the Court in Friedrichs v. California
Teachers Association
seemed ready to overrule Abood,
but the untimely passing of Justice Antonin Scalia created a 4-4
deadlock that left the state laws in place. Now with a full Court,
the justices will have the opportunity to finally vindicate
public-sector workers’ First Amendment rights once and for all.

But what about workers who aren’t “full-fledged public
employees”? Thanks to Harris, they no longer must
pay unions, but should they have to be associated with
them at all? That’s the question in Hill v. SEIU, in which
a petition for Supreme Court review is pending. Rebecca Hill and
thousands of other home-care aides are still forced in certain
states to associate with a union that has been designated as their
“exclusive representative” for collective bargaining.

The U.S. Court of Appeals for the Seventh Circuit reasoned that
Abood and subsequent cases only require that Illinois
provide a “rational basis” for forcing workers to associate with
the SEIU — not the heightened scrutiny typically required in
First Amendment cases — and Harris didn’t change
that. But if the rationale for compelled fees in Harris
doesn’t stand up to constitutional scrutiny, neither should being
compelled into an association in the first place — even if
you don’t have to pay for it.

Justice Robert Jackson, one of the Court’s most legendary
members (whose seat Neil Gorsuch now occupies), wrote back in 1943,
“If 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.” With Janus and Hill, the Supreme Court
can uphold this fixed star by correcting a 40-year mistake and
returning some of the freedom (and money!) American workers have

Ilya Shapiro
is a senior fellow in constitutional studies at the Cato Institute,
where Frank
was until recently a legal associate.