"... black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things." Justice Kagan

The Supreme Court of the United States (a.k.a SCOTUS,) is anxiously awaiting the review and confirmation of President Trump’s second court appointment.  In the meantime, “the Supremes” (apologies to Flo, Mary, and Diana) have significantly diminished the power of the organized labor movement in their Janus v. American Federation of State, County, and Municipal Employees (AFSCME) ruling.

In the 5-to-4 decision, the court ruled that, since public employee unions participate in elections and endorse local/federal candidates, the agency fee payers are, through their contributions, indirectly forced to support candidates whose policies they don’t agree with.  As a result of the decision (which you can read here) unions may no longer compel employees to pay the fees.  In addition, employees who decline to become members must still be represented by the union.

Mark Janus, the plaintiff, worked for the state of Illinois as a child support specialist.  As in New York State, public sector employees are not required to join any union local.  However, nonmembers in job titles represented by the union but must pay a fee equal to the monthly dues paid by members.  A deduction is then made to represent the portion of the fees that finance the political activities of the union.

These non-member, “agency fee payers” receive the same representation as the members, but don’t vote in union elections or participate in union activities.  The legal justification for these fees is that the non-members should pay the actual costs of the unions that handle their grievances, negotiate their wages and benefits, etc.

This court decision, specifically reverses the 1977 Abood v. Detroit Board of Education case decided by the Chief Justice Warren “Burger Court.”  That decision held that the abridgement of plaintiff Abood’s free speech/association rights was necessary to protect the broader public interest in preserving unions by preventing “free riders” (or freeloaders) from  receiving services without paying for them.

Justice Alito, one of the usually conservative/right wing members wrote the majority opinion, which stated that:

“…States and public-sector unions may no longer extract agency fees from nonconsenting employees. The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.”

Unions have been a significant factor in America’s social, political, and economic life over the last 100 years. They helped in creation of the 5 day work week, the 8-hour workday, paid vacations, sick leave, and health benefits.  Politically, they have been a major component of the coalitions that elected Obama, Clinton, and most post-WW II Democratic Presidents.  Locally, Governors Cuomo and Murphy are in office due to union support/personnel and Black/Brown votes.

And it is the political power of labor that is the target of the court decision.  Mark Janus’ multi-year, highly expensive lawsuit was financed by a coalition of organizations including the Center for Individual Rights (CIR), the National Right to Work Legal Defense Foundation (NRTWLDF), and the Liberty Justice Center (LJC).  Each of these organizations have somewhat misleading names and unquestionably anti-worker agendas.


CIR’s conception of “individual rights” puts the worker at the mercy of the employer – as an individual (s)he doesn’t have the power to negotiate the conditions of work, (s)he must accept whatever is offered.  Similarly, NRTWLDF is silent on the worker’s need to have a living wage and a safe work environment.  And the LJC “liberates” workers from job security, wage increases, and due process when disputes take place.

All of these organizations are funded by employers and the wealthy, not by worker organizations.   All of their efforts undermine the status of working people.

The Court seems to have a wicked sense of humor in regards to the free speech clause of the U. S. Constitution.  In the 2010 Citizens United  v. the Federal Elections Commission (FEC), it ruled that legislated limits on corporate election spending violated the free speech rights of corporate “persons.”  And since money facilitates speech (via newspaper ads, etc.) the decision effectively says that rich people and corporations are entitled to more  speech that poorer citizens.

Now, in the Janus decision, the court twice limits the free speech of labor unions – by draining their funds (freeloaders don’t have to contribute) while forcing them to represent the non-payers (the costs of which are another drain on funds paid by members.)

Justice Elena Kagan focused her dissent on the Stare Decisis (in Latin, let the decision stand) principal, which argues that the court should uphold prior decisions in most cases.  In a rarely- seen rebuke of her colleagues, she said that the majority vote was turning the “…first Amendment into a sword, and using it against workaday economic and regulatory policy.”

The court’s action was more noteworthy because the 5-4, controversial decision overturned “Abood”, which was a unanimous 9-0 vote.  Kagan’s dissent noted that;

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. And likewise, judicial disruption does not get any greater than what the Court does today.

Shortly after the decision was announced, plaintiff Janus resigned his government position.  He joined the staff of the advocacy group that financed and litigated his suit.

We’re one Justice shy of a super-conservative Trump court.  And to paraphrase the late, great journalist Les Payne – Boy, what a country.


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