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| © Larry Downing / Reuters
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By Dave Jamieson, HuffPost
The Supreme Court ruled 5-4 on Wednesday that public sector workers who are represented by labor unions cannot be required to pay any dues. Handed down by the court’s conservative majority, the decision upends a 40-year-old precedent and will go down as one of the most consequential rulings on labor law in decades.
But Janus v. AFSCME Council 31 is much more than just an employment case. By financially weakening organized labor, a pillar of the Democratic Party, the decision affects the political system at large. Like other recent decisions related to voting rights, it will help determine who gets elected to office and who determines all kinds of policy, from the White House down to statehouses from coast to coast.
That makes the decision a smashing win not just for opponents of labor unions but for the Republican Party at large ― and they have Senate Majority Leader Mitch McConnell (R-Ky.) to thank. It’s improbable that the Janus case would have turned out the way it did had McConnell and Senate Republicans not stonewalled former President Barack Obama’s nominee to the Supreme Court, Merrick Garland.
Most analyses of Garland’s record from the bench found him to be left of center, and therefore more likely to side with the court’s liberal wing on contentious decisions like Janus. Meanwhile, Justice Neil Gorsuch ― the man who wound up in the seat Garland was originally nominated for ― is a solidly conservative vote, including on labor cases. Unions fully expected him to join the court’s right wing in the Janus decision, even if it meant overturning a 1977 Supreme Court precedent.
That case, Abood v. Detroit Board of Education, upheld the constitutionality of mandatory union fees, or “fair share” fees, in the public sector. In the U.S., unions have to represent all the workers in a particular bargaining unit equally. Because that representation doesn’t come free, unions prefer to negotiate contracts requiring everyone to chip in to cover the costs to avoid what unions derisively call “free riding” by non-dues-paying employees. The Janus ruling makes such contracts illegal.
Anti-union groups have sought the Janus ruling for years. They nearly got their wish in 2016, when the Supreme Court heard Friedrichs v. California Teachers Association, a case that preceded Janus but revolved around the same argument: that mandatory union fees in the public sector amount to “compelled speech” and violate a worker’s First Amendment rights. It seemed all but certain that unions would lose the Friedrichs case, but then conservative Justice Antonin Scalia died soon after oral arguments were heard. Short one justice, the court ended up deadlocking, 4-4, leaving the earlier precedent in place.
Obama nominated the moderate Garland in March 2016. But Republicans refused to give him a hearing, leaving his nomination to languish. After winning the 2016 election and assuming office, President Donald Trump nominated Gorsuch, who Senate Republicans confirmed two months later. With a full court, the justices once again took up the question of public sector union dues, via Janus. This time, Gorsuch provided the tie-breaking fifth vote that anti-union groups needed.
The Janus case hits public sector unions where it hurts: in their pocketbooks. Unions are legally required to represent every worker in a bargaining unit equally. Because that’s costly, unions like to negotiate contracts that require every worker to chip in to cover the costs of representation. The Janus ruling makes such contracts illegal for public employees, effectively making the entire U.S. public sector “right to work,” meaning employees cannot be required to pay fees to a union, even if the union must still bargain on their behalf.
The upshot is that a few million teachers, sanitation workers and other public employees will have the chance to opt out of paying union fees, even though their unions must continue to bargain on their behalf. While the share of private-sector workers belonging to unions has fallen to a near-historic low, unionism in the public sector has remained strong. Janus could change that.
The decision will force public sector unions to change the way they do things. They will have to pour more resources into member outreach, trying to convince the people they already represent to be union members and voluntarily pay dues. In essence, they will have to fight to maintain a status quo. That could make those unions more responsive to their members, but it could also pull money away from other areas, such as organizing campaigns and political causes.
Even private-sector unions not directly affected by Janus will be hurt by the ruling. Republican lawmakers around the country have been trying to peel back collective-bargaining rights and weaken the political clout of unions, which steer far more money to Democrats than to Republicans and run effective ground games for candidates. The relative strength of the public employee unions has helped labor as a whole beat back some of those efforts. After Janus, those unions may be less able to provide mutual aid.
Just look at Wisconsin. Republican Gov. Scott Walker stripped away collective-bargaining rights for most public employees through Act 10 in 2011. After decimating the unions representing teachers and other public workers, it was that much easier for Republican lawmakers to steamroll private-sector unions with a right-to-work law just four years later. Many labor activists in Wisconsin viewed it as a divide-and-conquer strategy that damaged not only unions but also progressive politics in general.
After Trump defied expectations to win Wisconsin in 2016, no less an authority than anti-tax, anti-union crusader Grover Norquist knew where to give credit. “It is official,” Norquist tweeted on election night. “Scott Walker just won the presidential race in 2016 by passing Act 10 five years ago.”
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