The Supreme Court has issued a sweeping ruling that dramatically undermines unions for teachers, firefighters, police officers, and other public employees throughout the United States.
The case, Janus v. AFSCME, involved a challenge to the practice of public sector unions charging “agency fees” to employees who decline to join the union but who still benefit from the deals it bargains. The fees are typically similar to, but a bit lower than, union dues. In a 5-4 opinion written by Justice Samuel Alito and joined by the four other conservative justices (Anthony Kennedy, Clarence Thomas, John Roberts, and Neil Gorsuch), the Court ruled that requiring public employees to pay agency fees is unconstitutional under the First Amendment.
The logic is that unions are political actors, and by allowing unions to charge agency fees, state governments are effectively compelling employees to financially support a political organization that they may or may not agree with. That, the plaintiffs claim, is compelled speech and thus unconstitutional.
Twenty-eight states already have “right to work” laws banning agency fees. Such laws create a free-rider problem: People don’t have to join unions or pay agency fees to get the unions’ benefits, so the unions lose members and political influence.
The 22 states that don’t have these laws include heavily populated ones like California, New York, Pennsylvania, Illinois, and Ohio; those five states on their own account for nearly half of America’s total union members. That helps explain why the union movement views agency fees as necessary if they are to survive at all, and as valid as any other provision in an employment contract. Without the fees, public sector unions could shrivel and take the broader union movement with them.
The Court punted on a similar case in 2016, deadlocking 4-4 in the wake of Antonin Scalia’s death. With Scalia replaced with a fellow conservative, Neil Gorsuch, there was finally a 5-4 majority to rule against the unions.