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Compelled Union Dues Are Back At The Supreme Court: What Happens Next?

Sep 29, 2017

Brian Miller, Contributor
September 29, 2017

This morning, in one of its first actions after returning from summer recess, the Supreme Court announced it will hear Janus v. AFSCME, a case that challenges compulsory union dues. Janus will be one of the most influential cases of this term. Twenty-three states currently compel all public employees to pay union fees. A decision by the Court could overturn the laws in each of those states and set a landmark First Amendment precedent.

The case was brought by Mark Janus, a child support specialist in the Illinois Department of Healthcare and Family. He is not a member of any public employee union, but the government still deducts union fees from his paycheck every month to cover collective bargaining expenses. His suit argues collective bargaining is inherently political and that the laws mandating compelled fees violate his First Amendment rights by compelling his speech and association in activities he disagrees with.

This will be the third time the Court has considered the issue in as many years. Most of the sitting justices have staked out pretty clear positions on the question. In 2011’s Knox v. SEIU, Justice Alito said the reigning precedent that allowed compulsory unionism is “something of an anomaly” when it comes to our First Amendment jurisprudence. He was joined in that observation by Justices Roberts, Kennedy, Thomas, and Scalia. The remaining Justices thought Alito’s critiques went too far.

In last year’s Friedrichs v. CTA, battle lines were drawn once again. That case raised the same issue as Janus does this year. In each case, public employees objected to paying mandatory fees to unions to cover collective bargaining. They argue that collective bargaining is not a neutral enterprise. On the contrary, the issues that unions negotiate over with municipalities often have far-reaching political consequences. At oral arguments in that case, Justice Kennedy, who is usually the swing vote, came out firmly against the unions by pointing out that they made unwilling public employees “compelled riders” on the union agenda.

Friedrichs, however, couldn't be decided on the merits because Justice Scalia died shortly after oral arguments. The remaining justices split 4-4 on the question and were unable to issue a precedential decision.

Thanks to this history, everyone is fairly confident about where eight of the Justices stand on the issue. The big question this time around is how Justice Gorsuch will vote.
In his eleven years on the federal bench, Justice Gorsuch has not had an occasion to consider the free speech rights of public employees. He has, however, taken a strong position against compelled association.

In 2013, then Judge Gorsuch authored a concurring opinion in Burwell v. Hobby Lobby when that case was before the Tenth Circuit. That case was like Janus in one important way. The owners of Hobby Lobby and others - like the Little Sisters of the Poor - were told by the Obama administration to fund access to contraceptives through their insurance policies.

Much like Mark Janus is arguing that compelled union dues require him to support activities he disagrees with, Hobby Lobby argued that the Obama administration compelled them to violate the teachings of their faith by providing financial support for activities they fundamentally opposed.

Justice Gorsuch sided with the owners of Hobby Lobby. In a concurring opinion, he justified his decision by saying, “All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others.”

It’s impossible to speculate about how any Justice will vote on a given issue, but one would think that if it is wrong for the state to compel individuals to violate their beliefs and support the use of contraception, it would also be wrong to compel individuals to violate their beliefs and support a union. Justice Gorsuch’s opinion in Hobby Lobby suggests he knows exactly what is at stake when it comes to compelled association. That is good news for public employees who have been fighting for years for the right to decide for themselves whether or not to support a union.
 

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