2018 has generally been a good year for labor activists working in the public sector. A wave of teachers strikes in West Virginia, Kentucky, Oklahoma, Arizona, and Colorado has led to pay raises even in red states with Republican governors where teachers can’t collectively bargain. The strikes seem to suggest that public sector labor organizing, and labor unions, could be revitalized.
Except the Supreme Court could be preparing to deal public sector unions a devastating blow. The Court is expected to soon deliver its ruling in Janus v. AFSCME, a case challenging 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.
Twenty-eight states 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.
The plaintiffs in Janus argue that agency fees, for government employees, are a First Amendment violation. After all, 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. Unions, by contrast, view the practice 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, anti-union conservatives are optimistic that this time, they’ll win and land a devastating blow against public sector unions.
The status of public sector unions in America, explained
In 2017, there were about 117 million private sector workers in America, and 21 million public sector workers, according to the Bureau of Labor Statistics. But the number of unionized workers in the private and public sectors were nearly identical: 7.6 million versus 7.2 million. So while a fairly tiny share of private sector workers (6.5 percent) belong to a union, about a third (34.4 percent) of public sector workers do.
This is the culmination of decades of decline in private sector unions in America, caused by a variety of factors including slower employment growth in unionized workplaces (compared to nonunion workplaces); anti-union legislation, particularly in the South and more recently the Midwest; the automation, offshoring, and general decline of union-heavy industries like textiles and auto manufacturing; and more sophisticated corporate anti-union drives.
As all that happened, public sector unionization actually got stronger. According to one study (using a slightly different data set than the one graphed above), only 10.8 percent of public sector workers were unionized in 1960; in 1962, after action by John F. Kennedy to unionize the federal government, 24.3 percent were. In 1970, 32 percent were, and by 1976, more than 40 percent were. In two years, the rate doubled; in a decade, it tripled; in 16 years, it quadrupled.
Basically, the federal government (through Kennedy’s Executive Order 10988) started allowing employees to unionize, and state and local governments followed suit. Before long, unions for teachers, sanitation workers, police officers, firefighters, prison guards, and more became standard in much of America. The union representing most state and local employees, the American Federation of State, County and Municipal Employees (AFSCME), and teachers unions like the National Education Association (NEA) and American Federation of Teachers (AFT) became powerful political actors and in some cases the public image of labor unions.
The forces that stifled private sector unions did not, generally, hit public sector unions as hard. While higher wages for employees meant that private sector firms with unions hired less than their nonunion competitors, state and local governments don’t really have competitors. Globalization and automation didn’t push public sector workers into other public sector jobs that are less likely to be unionized, unlike the way they pushed private sector workers in that direction.
Right-to-work laws in 25 states apply to public sector employees, which does appear to be at least associated with lower levels of unionization (in 2012, 17.3 percent of public sector workers in right-to-work states were union members, compared to 49.1 percent in other states), but it’s not clear how much of the differential is caused directly by right-to-work laws. That said, it appears likely that abandoning agency fees and making the whole country right-to-work would reduce public sector union membership at least somewhat.
The upshot of this history is that while the public sector was once barely unionized, it has, over time, become an increasingly large and important share of a dramatically weakened labor movement. And that means a Supreme Court ruling forcing a right-to-work approach for all public employees poses a grave threat not just to public sector unions but to the union movement as a whole.
The history behind the Janus case
For the union movement, this case is about survival. For a certain group of anti-union conservative lawyers, it’s about the First Amendment and free speech.
In 1977, the Supreme Court heard a case from Detroit schoolteacher D. Louis Abood, who objected to being forced to become a member or pay agency fees to a teachers union. To force him to give money to a group whose political ideas he disagreed with was, he claimed, compelled speech. In a unanimous ruling, the Court rejected that argument, instead ruling that while agency fees could not be used to pay for lobbying or political activity, unions could still force nonmembers to pay them in exchange for collective bargaining and other apolitical services the union provides.
The ruling was typical of how the Court thinks about First Amendment issues. There’s a strong presumption against any burdening of free speech. But when a compelling interest is at stake (like a need to prevent free-riding on the union’s bargaining ability, and the union’s need to be compensated for the work it does to raise worker wages), that interest can trump an apparent burdening of speech.
The question in these cases is always how to weigh that burden on speech and the interest being served in burdening it. As Elena Kagan would write in a case nearly four decades later, “Our decisions have long afforded government entities broad latitude to manage their workforces, even when that affects speech they could not regulate in other contexts.”
The Abood precedent hasn’t sat well with some of the conservative legal movement, and the conservative majority on the Supreme Court in recent years has been chipping away at the conclusion. In the 2012 case of Knox v. SEIU, Samuel Alito wrote that a public employees union could not assess a midyear fee explicitly to pay for political activities. (SEIU literally called it an “Emergency Temporary Assessment to Build a Political Fight-Back Fund.”) The case was clear enough that even Sonia Sotomayor and Ruth Bader Ginsburg concurred in the judgment.
But Alito went further and hinted that he wanted to overturn Abood, writing that “our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate.” In her concurrence, Sotomayor agreed the SEIU went too far, but argued that Alito’s insinuations that he wanted to rule against agency fees in general “disregard[ed] principles of judicial restraint that define the Court’s proper role in our system of separated powers.”
In 2014, the Court ruled in Harris v. Quinn that home health aides who are paid by Medicaid could not be obligated to pay agency fees to public employee unions. The ruling, which was a 5-4 conservative/liberal split, rested on a distinction between partial public employees (like Medicaid-funded health workers) and fully public employees whose direct employer is the government.
But once again, Alito used his decision to argue against the logic of Abood. “The Abood Court’s analysis is questionable on several grounds,” Alito wrote. “Abood failed to appreciate the conceptual difficulty of distinguishing in public sector cases between union expenditures that are made for collective-bargaining purposes and those that are made to achieve political ends.”
At the time, the case was taken as a strong sign that the Supreme Court was ready to overturn Abood and ban agency fees altogether. “Today’s decision in Harris v. Quinn has at least made Abood a ghoul, one of the walking dead,” the conservative litigator John Eastman wrote at SCOTUSblog.
In 2016, a lawsuit by a California teacher, Rebecca Friedrichs, against the California Teachers Association, making a similar compelled speech argument, reached the Supreme Court. “We’re being asked to fund collective bargaining that’s highly political using taxpayer money and I don’t have a choice,” Friedrichs told the Washington Post.
Conservatives were encouraged by the oral arguments in the case. In National Review, Carrie Severino, who runs the conservative Judicial Crisis Network, noted that while Scalia had in past cases been sensitive to union arguments about free-riding, here he “embraced the idea that public unions are inherently political and seemed confident that unions would be able to survive even without the ability to collect fees from non-members.” Anthony Kennedy’s questions, she wrote, “again and again took the teachers’ side [against the union].”
Then Scalia died, leaving the Court with a 4-4 liberal/conservative split. Sure enough, the Court deadlocked, and the ruling of the Ninth Circuit Court of Appeals in favor of the teachers union was allowed to stand.
If Merrick Garland had taken Scalia’s seat, the odds of an Abood reversal likely would have evaporated. But with reliable conservative Gorsuch in the seat, the odds appear reasonably high. Along with the four conservatives who wanted to side with Friedrichs in 2016, he could form a majority overturning the ruling and eliminating agency fees for public sector unions altogether.
During Gorsuch’s second year on the Court, it took up the suit Mark Janus (an employee of the state of Illinois) filed against AFSCME for compelled speech, offering another go at the question. Veteran Court observer Nina Totenberg observed that Gorsuch was “uncharacteristically quiet” during oral arguments, even as observers knew he was the big question mark in the case.
Even some conservatives want to keep Abood
The outcome of Janus may feel predictable: There are five conservative justices now, so why would there not be a conservative conclusion? One of the most fascinating aspects of Janus, however, is that it’s not a simple left/right divide.
Two very prominent libertarian law professors, UChicago’s William Baude and UCLA’s Eugene Volokh, authored an amicus brief siding with the union in the case. “I don’t think there’s any First Amendment problem with compelled payments of union agency fees at all,” Volokh explained in a blog post. “The government can constitutionally require people to pay money to the government (in taxes), money that the government can then use for ideological purposes (e.g., supporting a war, opposing racism, promoting environmentalism, and so on). Likewise, the government can constitutionally require people to pay money to unions, money that the unions can then use for ideological purposes.”
The problem with Abood, he argues, is that it conceded too much to the First Amendment case by suggesting that agency fees couldn’t be used for specifically political spending. Even things like the SEIU political fund, on this view, appear perfectly legitimate. “I don’t say this because I support unions generally — indeed, I’m somewhat skeptical of modern American unionism, both public-sector and private-sector,” Volokh continued. “But I don’t see any principled First Amendment reason for forbidding governments from requiring such payments from public employees.”
Other conservatives, predictably, thought this argument too clever by half. Matthew J. Franck, a lecturer at Princeton, wrote in National Review, “Taxes are paid to fund the public interest,” not the interests of union members.
But Volokh is, in a way, following in Scalia’s footsteps here. While he joined in Alito’s anti-union rulings in 2012 and 2014, in 1991, Scalia partially concurred in a ruling finding that public sector unions could compel agency fees. He wrote that to rule otherwise would be to have the government effectively force unions to help nonmembers who do not pay them, which itself could be constitutionally problematic. “The free ridership (if it were left to be that) would be not incidental, but calculated, not imposed by circumstances, but mandated by government decree,” Scalia wrote.
Gorsuch is famously a huge admirer of Scalia, and travels in the same broad intellectual circles as Baude and Volokh. It’s not inconceivable that he would be moved by either Scalia’s narrow argument against compelling unions to help nonmembers or the more expansive argument of Volokh and Baude that compelling any and all payments to public sector unions is constitutional.
Moreover, some union advocates have argued that conservatives will rue a ruling overturning Abood for what it might imply about the application of the Constitution to public employment more generally. “Imagine if a teacher called in sick, and an administrator had to procure a warrant before searching her desk drawer for a text book, or else risk violating the Fourth Amendment,” Moshe Marvit, a fellow at the Century Foundation, wrote in the New York Times. “Or imagine if a police sergeant who tells an officer that he didn’t have time to listen to a complaint about the break room now has to worry that he violated the First Amendment.”
Shaun Richman, a veteran union organizer, warned in the Washington Post that a ruling against agency fees could require public employers to allow multiple unions to compete for workers, instead of dealing with just one. That could lead to greater union militancy and power as unions fall over each other to show they’re the most committed worker advocates.
All of which is to say that there is a sound conservative basis, both tactically and legally, for rejecting the Janus challenge and leaving public employee unions be. That doesn’t mean that Gorsuch will, in fact, embrace this logic and rule in favor of the public employee unions. The outcome is still up in the air. But an anti-union ruling isn’t as certain as you might expect from a conservative Court.